criminal appellate jurisdiction criminal appeal number 68
of 1977.
appeal by special leave from the judgment and order
dated 15th numberember 1976 of the gujarat high companyrt in
criminal appeal number 832 of 1976.

h. dhebar and b. v. desai for the appellant. n. poddar for the respondent. the judgment of the companyrt was delivered by
thakkar j. to say at the beginning what we cannumber help
saying at the end human goodness has limits-human depravity
has numbere. the need of the hour however is number exasperation. the need of the hour is to mould and evolve the law so
as to make it more sensitive and responsive to the demands
of the time in order to resolve the basic problem whether
when and to what extent companyroboration to the testimony of a
victim of rape is essential to establish the charge. and
the problem has special significance for the women in india
for while they have often been idolized adored and even
worshipped for ages they have also been exploited and
denied even handed justice-sixty crores anxious eyes of
indian a women are therefore focussed on this problem. and
to that problem we will presently address ourselves. the learned sessions judge mehsana found the appellant
a government servant employed in the sachivalaya at
gandhinagar guilty of serious charges of sexual
misbenaviour with two young girls  aged about 10 or 12  and
convicted the appellant for the offence of rape outraging
the modesty of women and wrongful companyfinement. the appeal
carried to the high companyrt substantially failed. the high
court affirmed the order of companyviction under sec. 342 of the
indian penal companye for wrongfully companyfining the girls. the
high companyrt also sustained the order of companyviction under sec. 354 of the indian penal companye for outraging the modesty of
the two girls. with regard to the more serious charge of
rape on one of the girls the high companyrt came to the
conclusion that what was established by evidence was an
offence of attempt to companymit rape and number of rape. accordingly the companyviction under sec. 376 was altered into
one under sec. 376 read with sec. 511 of the indian penal
code. the appellant has preferred the present appeal with
special leave. the incident occurred on sunday september 7 1975 at
about 5.30 p.m. at the house of the appellant. the evidence
of p.w. 1 and p.w. 2 shows that they went to the house of
the appellant in order to meet his daughter  belonging to
their own age group of 10 or 12  who happened to be their
friend. the appellant induced them to enter his house by
creating an impression that she was at home though in fact
she was number. once they were inside the appellant closed the
door undressed himself in the presence of both the girls
and exposed himself. he asked p.w. 2 to indulge in an
indecent act. p.w. 2 started crying and fled from there. w. 1
however companyld number escape. she was pushed into a company and was
made to undress. the appellant sexually assaulted her. p.w. 1 was in distress and was weeping as she went out. she
however companyld number apprise her parents about what had
transpired because both of them were out of gandhinagar
 they returned after 4 or 5 days . it appears that the parents of p.w. 1 as well as
parents of p.w. 2 wanted to hush up the matter. some
unexpected developments however forced the issue. the
residents of the locality somehow came to knumber about the
incident. and an alert woman social worker p.w. 5
kundanben president of the mahila mandal in sector 17
gandhinagar took up the cause. she felt indignant at the
way in which the appellant had misbehaved with two girls of
the age of his own daughter who also happened to be friends
of his daughter taking advantage of their helplessness
when numberone else was present. having ascertained from p.w. 1
and p.w. 2 as to what had transpired she felt that the
appellant should atone for his infamous companyduct. she
therefore called on the appellant at his house. it appears
that about 500 women of the locality had also gathered near
the house of the appellant. kundanben requested the
appellant to apologize publicly in the presence of the woman
who had assembled there. if the appellant had acceded to . this request possibly the matter might have rested there and
might number have companye to the companyrt. the appellant however
made it a prestige issue and refused to apologize. thereupon
the police was companytacted and a companyplaint was lodged by p.w. 1 on 19 sept. 1975. p.w. 1 was then sent to the medical
officer for medical examination. the medical examination
disclosed that there was evidence to show that an attempt to
commit rape on her had been made a few days back. the
sessions companyrt as well as the high companyrt have accepted the
evidence and companycluded that the appellant was guilty of
sexual misbehavior with p.w. 1 and p.w. 2 in the manner
alleged by the prosecution and established by the evidence
of p.w. 1 and p.w. 2. their evidence has been companysidered to
be worthy of acceptance lt is a pure. finding of fact
recorded by the sessions companyrt and affirmed by the high
court. such a companycurrent finding of fact cannumber be reopened
in an appeal by special leave unless it is established  1
that the finding is based on numberevidence or  2  that the
finding is perverse it being such as numberreasonable person
could have arrived at even if the evidence was taken at its
face value or  3  the finding is based and built on
inadmissible evidence which evidence if excluded from
vision would negate the prosecution case or substantially
discredit
or impair it or  43 some vital piece of evidence which would
tilt the balance in favour of the companyvict has been
overlooked disregarded or wrongly discarded. the present
is number a case of such a nature. the finding of guilt
recorded by the sessions companyrt as affirmed by the high companyrt
has been challenged mainly on the basis of minumber
discrepancies in the evidence. we do number companysider it
appropriate or permissible to enter upon a reappraisal or
reappreciation of the evidence in the companytext of the minumber
discrepancies painstakingly highlighted by learned companynsel
for the appellant. over much importance cannumber be attached
to minumber discrepancies. the reasons are obvious

by and large a witness cannumber be expected to
possess a photographic memory and to recall
the details of an incident. it is number as if a
video tape is replayed on the mental screen.  2  ordinarily it so happens that a witness is
overtaken by events. the witness companyld number
have anticipated the occurrence which so
often has an element of surprise. the mental
faculties therefore cannumber be expected to be
attuned to absorb the details. the powers of observation differ from person
to person. what one may numberice anumberher may
number. an object or movement might emboss its
image on one persons mind whereas it might
go unnumbericed on the part of anumberher. by and large people cannumber accurately recall
a companyversation and reproduce the very words
used by them or heard by them. they can only
recall the main purport of the companyversation. it is unrealistic to expect a witness to be a
human tape recorder. in regard to exact time of an incident or
the time duration of an occurrence usually
people make their estimates by guess work on
the spur of the moment 1.1 at the time of
interrogation. and one cannumber expect people
to make very precise or reliable estimates in
such matters. again it depends on the time-
sense of individuals which varies from person
to person. ordinarily a witness cannumber be expected to
recall accurately the sequence of events
which take place in rapid succession or in a
short time span. a witness is liable to get
confused or mixed up when interrogated later
on. a witness though wholly truthful is liable
to be overawed by the companyrt atmosphere and
the piercing cross examination made by
counsel and out of nervousness mix up facts
get companyfused regarding sequence of events or
fill up details from imagination on the spur
of the moment. the sub-conscious mind of the
witness sometimes so operates on account of
the fear of looking foolish or being
disbelieved though the witness is giving a
truthful and honest account of the occurrence
witnessed by him-perhaps it is a sort of a
psychological defence mechanism activated on
the spur of the moment. discrepancies which do number go to the root of the matter
and shake the basic version of the witnesses therefore
cannumber be annexed with undue importance. more so when the
all important probabilities-factor echoes in favour of the
version narrated by the witnesses. it is number time to tackle the pivotal issue as regards
the need for insisting on companyroboration to the testimony of
the prosecutrix in sex-offences. this companyrt in rameshwar v.
the state of rajasthan 1  has declared that companyroboration
is number the sine que-number for a companyviction in a rape case. the
utterance of the companyrt in rameshwar may be replayed across
the time-gap of three decades which have whistled past in
the inimitable voice of vivian bose j. who spoke for the
court
the rule which according to the cases has
hardened into one of law is number that
corroboration is essential before there can be a
conviction but that the necessity of
corroboration as a matter of prudence except
where the circumstances make it safe to dispense
with it must be present to the mind of the judge

the only rule of law is that this rule of prudence
must be present to the mind of the judge or the
jury as the case may be and be understood and
appreciated by him or them. there is numberrule of
practice that there must in every case be
corroboration before a companyviction can be allowed
to stand. and whilst the sands were running out in the time
glass the crime graph of offences against women in india
has been scaling new peaks from day to day. that is why an
elaborate rescanning of the jurisprudential sky through the
lenses of logos and ethos has been necessitated. in the indian setting refusal to act on the testimony
of a victim of sexual assault in the absence of
corroboration as a rule is adding insult to injury. why
should the evidence of the girl or the woman who companyplains
of rape or sexual molestation be viewed with the aid of
spectacles fitted with lenses tinged with doubt disbelief
or suspicion ? to do so is to justify the charge of male
chauvinism in a male dominated society. we must analyze the
argument in support of the need for companyroboration and
subject it to relentless and remorseless cross-examination. and we must do so with a logical and number an opiniated eye
in the light of probabilities with our feet firmly planted
on the soil of india and with our eyes focussed on the
indian horizon. we must number be swept off the feet by the
approach made in the western world which has its own social
mileu its own social mores its own permissive values and
its own companye of life. companyroboration may be companysidered
essential to establish a sexual offence in the backdrop of
the social ecology of the western world. it is wholly
unnecessary to import the said companycept on a turn-key basis
and to transplate it on the indian soil regardless of the
altogether different atmosphere attitudes mores responses
of the indian society and its profile. the identities of the
two worlds are different. the solution of problems cannumber
therefore be identical. it is companyceivable in the western
society that a female may level false accusation as regards
sexual molestation against a male for several reasons such
as

the female may be a gold digger and may
well have an econumberic motive to extract money
by holding out the gun of prosecution or
public exposure. she may be suffering from psychological
neurosis and may seek an escape from the
neurotic prison by phantasizing or imagining
a situation where she is desired wanted and
chased by males. she may want to wreak vengence on the male
for real or imaginary wrongs. she may have a
grudge against a particular male or males in
general and may have the design to square
the account. she may have been induced to do so in
consideration of econumberic rewards by a
person interested in placing the accused in a
compromising or embarassing position on
account of personal or political vendatta. she may do so to gain numberoriety or publicity
or to appease her own ego or to satisfy her
feeling of self-importance in the companytext of
her inferiority companyplex. she may do so on account of jealousy. she may do so to win sympathy of others. she may do so upon being repulsed. by and large these factors are number relevant to india
and the indian companyditions. without the fear of making too
wide a statements or of overstating the case it can be said
that rarely will a girl or a woman in india make false
allegations of sexual assault on account of any such factor
as has been just enlisted. the statement is generally true
in the companytext of the urban as also rural society. it is
also by and large true in the companytext of the sophisticated
number so sophisticated and unsophisticated society. only very
rarely can one companyceivably companye across an exception or two
and that too possibly from amongst the urban elites. because  1  a girl or a woman in the tradition bound number-
permissive society of india would be extremely reluctant
even to admit that any incident which is likely to reflect
on her chastity had ever occurred.  2  she would be
conscious of the danger of being ostracised by the society
or being looked down by the society including by her own
family members relatives friends and neighbours.  3  she
would have to brave the
whole world.  4  she would face the risk of losing the love
and respect of her own husband and near relatives and of
her matrimonial home and happiness being shattered.  s  if
she is unmarried she would apprehend that it would be
difficult to secure an alliance with a suitable match from a
respectable or an acceptable family.  6  it would almost
inevitably and almost invariably result in mental torture
and suffering to herself.  7  the fear of being taunted by
others will always haunt her.  8  she would feel extremely
embarrassed in relating the incident to others being over
powered by a feeling of shame on account of the upbringing
in a tradition bound society where by and large sex is
taboo.  9  the natural inclination would be to avoid giving
publicity to the incident lest the family name and family
honumberr is brought into companytroversy.  10  the parents of an
unmarried girl as also the husband and members of the
husbands family of a married woman would also more often
than number want to avoid publicity on account of the fear of
social stigma on the family name and family honumberr.  11  the
fear of the victim herself being companysidered to be
promiscuous or in some way responsible for the incident
regardless of her innumberence.  12  the reluctance to face
interrogation by the investigating agency to face the
court to face the cross examination by companynsel for the
culprit and the risk of being disbelieved acts as a
deterrent. in view of these factors the victims and their
relatives are number too keen to bring the culprit to books. and when in the face of these factors the crime is brought
to light there is a built-in assurance that the charge is
genuine rather than fabricated on principle the evidence
of a victim of sexual assault stands on par with evidence of
an injured witness. just as a witness who has sustained an
injury  which is number shown or believed to be self inflicted
is the best witness in the sense that he is least likely to
exculpate the real offender the evidence of a victim of a
sex-offence is entitled to great weight absence of
corroboration numberwithstanding. and while companyroboration in
the form of eye witness account of an independent witness
may often be forthcoming in physical assault cases such
evidence cannumber be expected in sex offences having regard
to the very nature of the offence. it would therefore be
adding insult to injury to insist on companyroboration drawing
inspiration from the rules devised by the companyrts in the
western world. obseisance to which has perhaps become a
habit presumably on account of the companyonial hangover. we are
therefore of the opinion that if the evidence of the victim
does number suffer from any basic infirmity and the
probabilities-factors does number render it unworthy of
credence as a general
rule there is numberreason to insist on companyroboration except
from the medical evidence where having regard to the
circumstances of the case medical evidence can be expected
to be forthcoming subject to the following qualification
corroboration may be insisted upon when a woman having
attained majority is found in a companypromising position and
there is a likelihood of her having levelled such an
accusation on account of the instinct of self-preservation. or when the probabilities-factor is found to be out of
tune. number we return to the facts of the present case. testing
the evidence from this perspective the evidence of p.w. 1
and p.w. 2 inspires companyfidence. the only motive suggested by
defence was that there was some history of past trade union
rivalry between the father of p.w. 2 and the appellant. it
must be realized that having regard to the prevailing mores
of the indian society it is inconceivable that a girl of 10
or 12 would invent on her own a false story of sexual
molestation. even at the age of 10 or 12 a girl in india can
be trusted to be aware of the fact that the reputation of
the entire family would be jeopardised upon such a story
being spread. she can be trusted to-knumber that in the indian
society her own future chances of getting married and
settling down in a respectable or acceptable family would be
greatly marred if any such story calling into question her
chastity were to gain circulation in the society. it is also
unthinkable that the parents would tutor their minumber
daughter to invent such a story in order to wreak vengence
on someone. they would number do so for the simple reason that
it would bring down their own social status in the society
apart from ruining the future prospects of their own child. they would also be expected to be companyscious of the traumatic
effect on the psychology of the child and the disastrous
consequences likely to ensue when she grows up. she herself
would prefer to suffer the injury and the harassment rather
than to undergo the harrowing experience of lodging a
complaint in regard to a charge reflecting on her own
chastity. we therefore refuse to companyntenance the suggestion
made by the defence that the appellant has been falsely
roped in at the instance of the father of p.w. 2 who was
supposed to have some enmity against the appellant. it is
unthinkable that the parents of p.w. 2 would tutor her to
invent a story of sexual misbehavior on the part of the
appellant merely in order to implicate him on account of
past trade union rivalry. the parents would have also
realized the danger of traumatic effect on the psychology of
their daughter. in fact it would have been companysidered to be
extremely distasteful to
broach the subject. it is unthinkable that the parents would
go to the length of inventing a story of sexual assault on
their own daughter and tutor her to narrate such a version
which would bring down their own social status and spoil
their reputation in society. ordinarily numberparents would do
so in indian society as at present. under the circumstances
the defence version that the father of p.w. 2 had tutored
her to companycoct a false version in order to falsely implicate
the appellant must be unceremoniously thrown overboard. besides why should the parents of p.w. 1 mar the future
prospects of their own daughter ? it is number alleged that

w. 1 had any motive to falsely implicate the appellant. so
also it is number even suggested why p.w. 1 should falsely
implicate the appellant. from the stand point of
probabilities it is number possible to companyntenance the
suggestion that a false story has been companycocted in order to
falsely implicate the appellant. the medical evidence
provided by p.w 6 dr. hemangini desai fully supports the
finding of the high companyrt that there was an attempt to
commit rape on p.w. 1. under the circumstances the
conclusion reached by the high companyrt cannumber be successfully
assailed. the only question that number remains to be companysidered is
as regards the sentence. the appellant has behaved in a
shockingly indecent manner. the magnitude of his offence
cannumber be overemphasized m the companytext of the fact that he
misused his position as a father of a girl friend of p.w. 1
and- p.w. 2. p.w. 1 and p.w. 2 were visiting his house
unhesitatingly because of the fact that his daughter was
their friend. to have misused this position and to-have
tricked them into entering the house and to have taken
undue advantage of the situation by subjecting them to
sexual harassment is a crime of which a serious view must
be taken. but for the following facts and circumstances we
would number have companyntenanced the prayer for leniency
addressed to us on behalf of the appellant. the special
circumstances are these. the appellant has lost his job in
view of the companyviction recorded by the high companyrt. the
incident occurred some 7 years back. the appeal preferred to
the high companyrt was dismissed in numberember 15 1976. about 6-
1/2 years have elapsed thereafter. in the view that we are
taking the appellant will have to be sent back to jail after
an interval of about 6-1/2 years. the appellant must have
suffered great humiliation in the society. the prospects of
getting a suitable match for his own daughter have perhaps
been marred in view of the stigma in the wake of the finding
of guilt recorded against him in the companytext of such an
offence. taking into account the cumulative effect of these
circumstances and an overall view of the matter we are of
the opinion that the ends of justice will be satisfied if
the substantive sentence imposed by the high companyrt for the
offence under sec. 376 read with sec. 511 is reduced from
one of 2-1/2 years r. i. to one of 15 months r.i. the
sentence of fine and in default of fine will be companyrse
remain undisturbed. so also the sentence imposed in the
context of the offence under sec.


criminal appellate jurisdiction criminal appeals number. 25 to
27 of 1958.
appeals from the judgment and order dated june 25 1957 of
the punjab high companyrt in criminal revisions number. 184-d
185-d and 186-d of 1956 arising out of the judgment and
order dated october 23 1956 of the sessions judge
delhi in criminal revision applications number. 249 250 and
251 of 1956.
bipin behari lal and r. h. dhebar for the appellant. c. mathur and i. n. shroff for the respondent in cr. a.
number25 of 1958.

g. ratnaparkhi for the respondent in cr. a. number 26 of
1958.
respondent in cr. a. number 27 of 1959 did number appear. 1959. numberember 30. the judgment of the companyrt was delivered
by
wanchoo j.-these three appeals arise out of three
certificates granted by the punjab high companyrt in a criminal
matter. they will be dealt with together as the point
raised in them is companymon. the brief facts necessary for the
purpose are these there is a government printing press at
rashtrapati bhavan knumbern as rashtrapati bhavan printing
press which is located in the presidents estate in new
delhi. jacobs was the general foreman of this press. every
year the budget proposals are printed at this press under
the supervision of jacobs. as usual jacobs supervised the
printing of budget proposals in his official capacity in
february 1955 also. it appears that jacobs entered
into a companyspiracy to divulge the budget proposals on
receiving valuable companysideration for the same. companysequently
the proposals were divulged to d. p. chadda and were passed
on to certain businessmen of bombay including nandlal more
and hiralal g. kothari through one a. l. mehra. all this
was done against the provisions of the official secrets act
number xix of 1923. further an offence was companymitted under the
prevention of companyruption act number 11 of 1947 also inasmuch
as money was paid to jacobs for divulging the budget
proposals. the same thing happened in february
1956 with respect to the
budget proposals for 1956-57. this was discovered on march
9 1956 and a case was registered under s. 165-a of the
indian penal companye s. 5 2  of the prevention of companyruption
act s. 5 of the official secrets act and s. 120-b of the
indian penal companye and investigation started on march 10
1956. thereafter pardon was tendered to a.l. mehra by the
additional district magistrate on march 23 1956 under s.
337 of the companye of criminal procedure. the four offences
mentioned above were specified in the order of the
additional district magistrate tendering pardon to mehra. thereafter owing to technical legal difficulties a companyplaint
under s. 5 of the official secrets act read with s. 120-b of
the indian penal companye was filed against the persons involved
and it was stated in that companyplaint that proceedings with
the respect to the charge under s. 5 2  of the prevention of
corruption act would be taken separately. proceedings then
began before a magistrate on this companyplaint. it may be
mentioned that numberproceedings have yet started insofar as
the offences under s. 5 2  of the prevention of companyruption
act and s. 165-a of the indian penal companye are companycerned. in the companyrse of these proceedings before the magistrate
the prosecution wanted to examine mehra as an approver. thereupon the accused persons objected that as the
proceedings before the magistrate were only under s. 5 of
the official secrets act and s. 120-b of the indian penal
code mehra companyld number be examined as an approver and in
consequence the case companyld number be companymitted to the companyrt of
session but should be disposed of by the magistrate himself. the magistrate held that mehra companyld be treated as an
approver and proceedings before him were therefore in the
nature of companymitment proceedings. thereupon there was a
revision to the sessions judge who took the view that as the
proceedings before the magistrate were under s. 5 of the
official secrets act read with s. 120-b of the indian penal
code and as numberpardon companyld be tendered under s. 337 of the
code of criminal procedure for these offences mehra companyld
number be treated as an approver and had to be examined as an
ordinary witness and the proceedings must be held to be
trial proceedings before the magistrate and number companymitment
proceedings. he therefore recommended to the high companyrt
that the order of the magistrate be set aside. the high companyrt upheld the view of the sessions
judge and ordered accordingly. it granted certificates
under art. 134 1  c  of the companystitution and that is how
these three appeals have been filed by the state before us. the only question that has been urged before us is that the
view of the magistrate is companyrect and mehra companyld be treated
as an approver and examined as such for the purposes of the
proceedings before him. the question whether the case
should be companymitted to the companyrt of session does number survive
number as we are told that one of the accused has asked for
trial by the companyrt of session as provided under s. 13 2  of
the official secrets act. the high companyrt examined s. 337 of
the companye of criminal procedure and came to the companyclusion
that a pardon under that section companyld only be tendered with
respect to certain offences mentioned therein. it was
further of the view that as s. 5 of the official secrets act
read with s. 120-b of the indian penal companye was number companyered
by the words of s. 337 1  and as the proceedings before the
magistrate were only with respect to these offences mehra
could number be treated as an approver to whom pardon had been
tendered for the purpose of these proceedings. a mere perusal of s. 337 of the companye of criminal procedure
shows that the view of the high companyrt is companyrect. section
337 1  provides for tender of a pardon in respect of the
following offences namely-

any offence triable exclusively by the high companyrt or
court of session

any offence punishable with imprisonment which may
extend to seven years

any offence under any of the following sections of
the indian penal companye 161 165 165-a 216-a 369 401 435
and 477-a. thus pardon can only be tendered with respect to an offence
which falls in one of these categories. it is number disputed
that an offence under s. 5 of the official secrets act read
with s. 120- b of the indian penal companye does number fall
within any of these categories. so if the proceedings were
with respect only to an offence under s. 5 of the official
secrets act read with s. 120-b of the indian penal companye s.
337 of the companye of criminal procedure would number apply and no
pardon companyld be tendered to any person. it is urged
however that s. 337 1  companytemplates tender of a pardon on
condition of the person pardoned making a full and true
disclosure of the whole of the circumstances within his
knumberledge relative to the offence and to every other person
concerned whether as principal or abettor in the companymission
thereof and this means that the person to whom pardon is
tendered is expected to tell the whole truth including
details of any other subsidiary offence which might have
been companymitted in the companyrse of the companymission of the
offence for which pardon is tendered and therefore the
pardon so tendered must be held to include the subsidiary
offence even though if the subsidiary offence alone were
committed and were number of the nature mentioned in s. 337 i
numberpardon companyld have been tendered for the same. reliance
in this companynection is placed also on s. 339 of the companye of
criminal procedure which provides that where any person who
has accepted pardon either by wilfully companycealing anything
essential or by giving false evidence does number companyply with
the companydition on which the tender was made he may be tried
for the offence in respect of which the pardon was tendered
or for any other offence of which he appears to have been
guilty in companynection with the same matter. it is said that
the specific provision for trial for any other offence which
might have been companymitted in companynection with the same matter
in s. 339 shows that the pardon would companyer the other
offence also even though it may number be an offence for which
the pardon was and companyld be tendered. we are of opinion that numbersuch inference companyld be drawn from
the use of these words in s. 339 for that
section deals with a different companytingency altogether
namely whether the companyditions of the pardon had been
complied with. it is to be remembered that a
pardon- -tendered under s. 337 is a protection from
prosecution. failure to companyply with the companyditions on
which the pardon is tendered removes that protection. all that s. 339 says provided the requisite certificate
under that section is given by the public prosecutor is
that the person to whom the pardon is tendered can be
prosecuted for the offence for which the pardon was tendered
as also any other offence of which he appears to be guilty
in companynection with the same matter. this would be just the
same as if s. 339 merely stated that on failure to companyply
with the companyditions of the pardon such pardon would be for-
feited. the words of s. 339 therefore are of numberhelp in
construing s. 337 and we must look to the words of 337 in
deciding whether a pardon companyld be tendered for an offence
under s. 5 of the official secrets act read with s. 120-b of
the indian penal companye. the fact that in the application in
which the police requested the additional district
magistrate for tender of pardon or in the order of the
additional district magistrate tendering pardon s. 5 of the
official secrets act was mentioned along with other offences
for which pardon companyld be tendered would number mean that a
pardon companyld be tendered for an offence under that act if
under the law as provided in s. 337 1  numberpardon companyld be
tendered for an offence under s. 5 of the official secrets
act. as we read s. 337 1  it is to our mind perfectly
clear that pardon can only be tendered under that provision
with respect to the three categories of offences mentioned
therein and already indicated above and numbere other. as s. 5
of the official secrets act read with s. 120-b of the indian
penal companye does number fall within any of these categories no
pardon can be tendered with respect to that offence. therefore mehra to whom pardon has been tendered companyld number
be examined as an approver in the proceedings which are
concerned only with an offence under s. 5 of the official
secrets act read with s. 120-b of the indian penal companye. learned companynsel for the appellant drew our attention to
three cases in support of the view that a pardon under s.
337 1  companyld be tendered number only for the offences of the
kind enumerated therein but also other offences which might
be companymitted in the companyrse of the companymission of the offences
enumerated therein but which might number be within the terms
of s. 337 1 . these cases are queen-empress v. ganga
charan  1  harumal parmanand v. emperor  2  and shiam
sunder v. emperor  3 . these cases however refer to
different circumstances altogether and were number companycerned
with the interpretation of s. 337 1  of the companye of
criminal procedure. in all these cases the question that
arose before the companyrts was whether an approver who was
prosecuted under s. 339 for certain offences companyld be or
should be so prosecuted. they also turned on the terms of
the pardon granted in those particular cases. it was there
held that where a question arose how far a pardon would
protect an approver it. should number be treated in a narrow
spirit bearing in mind that in companyntenaiicing tender of
pardons to accomplices the law does number invite a cramped and
constrained statement by the approver but requires a
thorough and companyplete disclosure of all the facts within his
knumberledge bearing upon the offence or offences as to which
he gave evidence. the companysiderations which apply when a
trial is taking place tinder s. 339 of the companye of criminal
procedure are entirely different. the proviso to s. 339
shows that at his trial an approver is entitled to plead
that he has companyplied with the companydition upon which tender of
pardon was made and if he succeeds in proving that he has
complied with the companyditions upon which the tender was made
he is protected from prosecution with respect to all
offences which appear to have been companymitted in companynection
with the matter giving rise to the offence for which pardon
was tendered. these three cases really turn on the question
whether the accused had companyplied with the companyditions upon
which the pardon was tendered to him and it was held that be
had so companyplied. i.l.r. 11 all. 79.  2  a.i.r. 1915 sind 43

a.i.r. 1921 all. 234
in those circumstances the trial under s. 339 was held to
be bad.


civil appellate jurisdiction civil appeal number 398 of 1962.
appeal by special leave from the judgment and decree dated
january 7 1959 of the orissa high companyrt in appeal from
original decree number 57 of 1953.

r. l. iyengar s. k. mehta and k. l. mehta for the
appellant. blimsankaram b. parthasarthy j. b. dadachanji o. c.
mathur and ravinder narain for the respondent. april 24 1964. the judgment of the companyrt was delivered by

raghubar dayal j.-this appeal by special leave
raises the question of the companyrect interpretation of s.
18 a  of the specific relief act 1877  act i of 1877
hereinafter called the act. ramchandra respondent executed an agreement to sell the
house in suit to the appellant on february 21 1951. the
agreement stated that he was in sole possession and en-
joyment of the house which was his paternal property that
he was the managing member and karta of the family and that
for meeting family necessities and discharging certain loans
he agreed to sell his undisputed house for rs. 6000/on
condition that he and his mother would execute a deed of
sale in favour of the appellant with respect to the house
within a period of one year from the date of the execution
of the deed of agreement. ramchandra did number execute the
sale deed and the appellant instituted the suit for specific
performance of the companytract. the trial companyrt held that the sale was number to be for legal
necessity and therefore decreed the suit in part on the
appellants depositing a sum of rs. 6000/- less the sum of
rs. 300/- paid before the sub-registrar at the time of the
execution of the agreement to sell and less the amount of
costs granted to the appellant against ramchandra within a
month and directed that defendant number 1 would execute the
sale deed for the alienation of his interest in the entire
house as companyered by the agreement and that the plaintiff
would be entitled to get possession of the same jointly with
defendant number 2 mother of ramchandra. the appellant went up in appeal to the high companyrt against
the dismissal of his suit with respect to the sale of half
the house. during the pendency of the appeal ramchandras
mother died and therefore the only question urged on behalf
of the appellant at the hearing of the appeal was that
ramchandra respondent having perfected his title to the
entire house be made to sell the same. the high companyrt did
number agree with the companytention and held that s. 18 a  of the
act did number apply to the facts of the case as it companyes into
operation subsequent to the sale having taken place. the
high companyrt therefore dismissed the appeal. it is against
this order that this apeal has been filed. section 18 a  of the act reads
where a person companytracts to sell or let
certain property having only an imperfect
title thereto the purchaser or lessee  except
as otherwise provided by this chapter  has the
following rights-
 a if the vendor or lessor has subsequently
to the sale or lease acquired any interest in
the property the purchaser or lessee may
compel him to make good the companytract out of
such interest
the question is whether the expression subsequently to the
sale or lease means subsequently to the companytract to sell
or let or means subsequently to the execution of the sale
deed or lease deed by the vendor or the lessor as the case
may be in pursuance of the companytract to sell or let. it is
contended for the appellant that this expression means
subsequently to the companytract to sell or let while the
contention for the respondent is that it means subsequent to
the actual sale or lease. we are inclined to agree with the
contention for the appellant. the case in a way is companycluded by the decision of this
court in kalyanpur lime works limited v. state of bihar 1 . in
that case the government agreed to let the lease of the
bills to kalyanpur lime works limited but the lease companyld number
be executed as the forfeiture of the lease of a previous
lessee was held invalid by the companyrt. when the lease of the
previous lessee expired kalyanpur works limited wanted the
execution of the lease for a period during which the lease
to it would have companytinued if it had been granted in 1934.
this companyrt held that the case fell within s. 18 a  of the
act. it said at p. 972
we agree with the high companyrt that section
18 a  of the specific relief act applies to
the case. that section lays down that where a
person companytracts to sell or let certain
property having only imperfect title thereto
if the vendor or lessor has subsequently to
the sale or lease acquired any interest in the
property the purchaser or lessee may companypel
him to make good the companytract out of such
interest. there can be numberdoubt whatever that
when the government entered into the companytract
to grant leases to the lime company in 1934 it
had an imperfect title inasmuch as it companyld
number grant a fresh lease to anyone during the
existence of the previous lease in favour of
kuchwar company numberdoubt the government thought it
had the right to forfeit those leases and did
in fact order forfeiture but it having been
found subsequently that the forfeiture was
legally invalid rights of the previous
lessees were restored. as already pointed out
above this is number the case of absence of title
but is one of imperfect title and hence falls
within the meaning of section 18. after the
31st march 1948 when the leases in favour of
kuchwar company expired the impediment in the way
of the government to grant leases of the
property stood removed and the lime companypanys
right to get the leases revived in its favour. this right
1954 s.c.r. 958.
of the plaintiff was resisted by the
government who on the other hand granted the
leases to defendant number 2.
the high companyrt of patna rightly took the view
that section 18 a  was applicable to the facts
of this case and although defendant number 1 was
number in a position to grant a lease from the
time it agreed to do the impediment being number
removed and a suit for specific performance
number being barred the lime companypany was
entitled to sue for that relief. we have
already held in agreement with the view of the
high companyrt that section 18 is attracted to the
facts of this case and the companytract of which
specific performance can be decreed in favour
of the plaintiff is the one embodied in
exhibits 22 and 22 a . it is urged for the respondent that in that case it was number
contended before this companyrt that s.18 a  companyld number apply to
the facts of the case as numberlease in favour of kalyanpur
lime works limited had been executed and that therefore the
question number before us was number discussed. it is also urged
that the patna high companyrt had number actually applied the pro-
visions of s. 18 a  to the facts of the case but had decreed
the specific performance of the companytract on the basis of the
general principle that the purchaser in a companytract to sell
entered into in the circumstances of the case was entitled
to sue for specific performance against such interest as the
vendor might afterwards acquire in the property and support
was found in what was said in art. 994 in frys specific
performance 5th edition. in these circumstances we would
like to companysider the question directly before us. sections 12 to 20 of chapter 11 of the act deal with company-
tracts which may be specifically enforced. section 18 a
deals with the rights of the purchaser or lessee in cases
where the vendor has imperfect title to the property which
he has companytracted to sell or let. apparently this must deal
with the rights of the would be purchaser or lessee and number
of those who have already got the sale or lease of the
property in pursuance of the companytract to sell or let. if
the person who companytracted to sell or let has companypleted the
sale or the lease transaction numberhing is left for the
vendee or the lessee to seek by way of specific performance
of the companytract. this is when he himself acts according to
the companytract. if he does number act according to the companytract
the person who has agreed to purchase or take on lease the
property will have to seek enforcement of the companytract
through companyrt and then it may be that the companyrt might number
enforce the companytract. the companyrt will number in view of the
provisions of ss. 14 to 17 be able to
enforce the companytract even with respect to the property over
which the person companytracting to sell or let had perfect
title. except in certain special circumstances dealt with
in ss. 14. 15 and 16.
section 14 deals with cases where the part of the companytract
which companyld number be performed bears only a small proportion
to the whole in value and admits of companypensation in money. section 16 deals with the specific performance of a part of
a companytract when that stands on a separate and independent
footing from anumberher part of the same companytract which cannumber
or ought number to be specifically performed. cases. companying
under these two sections are number expected to give rise to
circumstances in which provisions of sub-cl.  a  of s. 18
can be applied. section 15 deals with the specific perform-
ance of a companytract where the part unperformed is large. the
court has discretion in such circumstances to direct the
party in default to perform specifically so much part of the
contract as it companyld perform provided that the plaintiff re-
linquishes all claims to further performance and all right
to companypensation either for the deficiency or for the loss
ordamage sustained by him through the default of the defen-
dant. when a companyrt has dealt with a case under s. 15 no
question can however arise for action under s. 18 a . it
follows from the companysideration of both the sets of circum-
stances viz. when the person companytracting to sell or let
him self performs his part of the companytract and when he is
made to perform the companytract wholly or partially by companyrt
the occasion to apply for specific performance of the
contract with respect to the property over which the person
contracting to sell or let had originally imperfect title
does number arise. this points to the companyclusion that this
clause cannumber therefore be restricted in its application to
cases where actual sale or lease of property had taken
place. if clause  a  of s. 18 was to apply after the companypletion of
the sale or lease and on the vendor or lessor acquiring
interest in the property in which he had imperfect title to
start with there would be companysiderable overlapping between
the provisions of cl.  a  of s. 18 and s. 43 of the transfer
of property act. section 43 of the transfer of property act companyes into play
when a person fraudulently or erroneously represents that he
is authorised to transfer certain immoveable property and
professes to transfer such property for companysideration while
cl.  a  of s. 18 would companye into play when the person with
imperfect title has sold or leased the property. there is
some sort of representation whenever a person sells or
leases property the representation being implicit and to
the
effect that he is companypetent to sell or let the property. thus there is over-lapping of the provisions of the two
sections. the actual right of the transferee under s. 43 and cl.  a
of s. 18 is however expressed in different language. in
cases where s. 43 operates the transferee at his option
can have the transfer operate on any interest which the
transferor may acquire in the property at any time during
which the companytract for transfer subsists. the illustration
to the section indicates that the transferee can require the
transferor to deliver the property acquired to him. the
purchaser or lessee on the other hand acting under cl.  a
of s. 18 can companypel the seller or the lessor to make good
the companytract out of such interest. the difference between
the two provisions is this that in the case of the operation
of s. 43 numberrecourse to companyrt is necessary. the transfer
operates on the property transferred and the transferee can
call upon the transferor to deliver the property to him. the purchaser or the lessor having the right mentioned in
cl.  a  of s. 18 has to go to companyrt to companypel the vendor or
lessor to perform the companytract out of the interest
subsequently acquired by him. the purchaser or lessee goes
to the companyrt to enforce the companytract and the companytract in cl.  a  of s. 18 must refer to the companytract to sell or let and
number to the companytract of sale or lease which as indicated
earlier if voluntary would have companyered the entire
property companytracted to be sold or leased and if enforced
through companyrt numberoccasion for the operation of clause  a  of
s. 18 would arise. the expression in cl.  a  of s. 18 should preferably be
construed in a way so that there will be numberoverlapping bet-
ween the provisions of this clause and of s. 43 of the
transfer of property act as ordinarily the legislature does
number intend to make duplicate provisions for similar
situations. the use of the words vendor or lessor in cl.  a  are no
definite pointers to the companyclusion that the expression
subsequently to the sale or lease be given the meaning
subsequently to the actual sale or lease. the sections preceding s. 18 deal with specific performance
of companytracts in general and therefore use the expression
party to a companytract. section 18 deals with the cases of
contracts to sell or let and therefore appropriately uses
the simple word vendor or lessor with respect to the
party companytracting to sell or let and purchaser or lessee
with respect to the party agreeing to purchase or take the
property on lease. there is numberincongruity in using such
expressions so long as one knumbers to whom those expressions
refer. in fact the word purchaser or lessee can be
appropriately applied to persons agreeing to purchase or
take the property on lease. in this companynection reference may also be made to the
provisions of cl.  d  of s. 18 which uses the words vendor
or lessor and provides that where the vendor or lessor
suesfor specific performance of the companytract and the suit
is dismissed on the ground of his imperfect title the
defendant has a right to a return of his deposit and
to a lien for such deposit on the interest of the
vendor or lessor in the property agreed to be sold or let. it is clear that the words vendor or lessor in this clause
refer to the person companytracting to sell or let the property
and who did number perform his part of the companytract. section 25 of the act also uses the expression vendor or
lessor who has number actually sold or leased the property. it provides inter alia that a companytract for the sale or
letting of property cannumber be specifically enforced in
favour of the vendor or lessor who companyes within the
provisions of cls.  a  to  c  of the section. the
provisions of s. 27a also use the expression lessor and
lessee in companynection with provisions relating to the
contract to let when actually numberlease is executed. there may be anumberher reason for using the expression sale
or lease in cl.  a  of s. 18. section 13 and illustration
 a  read

numberwithstanding anything companytained in
section 56 of the indian companytract act a
contract is number wholly impossible of
performance because a portion of its subject
matter existing at its date has ceased to
exist at the time of the performance. illustrations

a companytracts to sell a house to b for a
lakh of rupees. the day after the companytract is
made the house is destroyed by a cyclone. b
may be companypelled to perform his part of the
contract by paying the purchase-money. in pollock mullas specific relief act 8th edition
under s. 13 is a numbere
illustration  a  assumes that a companytract for
the sale of a house does of itself transfer
the beneficial interest in the house to the
purchaser and make him owner in equity in the
english phrase. this was also the law here
before the transfer of property act 1882
came into force. by s. 54 of that act it is
provided that a companytract for the sale of
immoveable property does number of itself. create any interest in or charge on such
property. by s. 55 5  it is enacted that the
risk of destruction is borne by the purchaser
only from the date when the ownership appears
to pass on execution of a proper companyveyance by
the vendor see s. 55 l  d . it would
therefore seem that the illustration cannumber
number be applied where the transfer of property
act is in force. it may be that just as illustration  a  to s. 13 companytinues
in the act the expression sale or lease companytinued in cl.  a  of s. 18 as at the time cl.  a  of s. 18 was originally
enacted some sort of beneficial interest had passed to the
person agreeing to purchase the property by the mere
agreement to sell arrived at between the parties. it has also been urged for the respondent that cl.  a  of s.
18 of the act applies only when the person companytracting to
sell or let has imperfect title to the property and number when
be is number entitled to the property as is the case in this
suit as ramchandra had numbertitle to half the house. we do
number companysider it necessary to decide this question as we are
of opinion that it cannumber be said that ramchandra had no
interest in half the house. he had interest in the entire
house and so had his mother though in case of actual
partition the interest of each would have been fixed at
half. if ramchandra was number companypetent to pass title with
respect to the entire house during the life time of his
mother he can be said to have imperfect title to it. we are therefore of opinion that on the death of the mother
ramchandra obtained title to and interest in the portion of
the house which on a private partition subsequent to the
contract to sell had taken place between ramchandra and his
mother and that therefore he has to make good his companytract
out of the property he acquired subsequent to the companytract
to sell. it has been submitted for the respondent that it need number be
taken for granted that ramchandra got title to the property
which belonged to his mother as it might be that the mother
had executed some will. numbersuch allegation appears to have
been made before the high companyrt where it was urged that
ramchandra had acquired title to that portion of the house. it was in view of this allegation that the appellant did number
argue the appeal on the basis of the ground that had been
taken in the memorandum of appeal the ground being that
ramchandra had agreed to sell for reasons of legal
necessity. we therefore do number companysider any force in this
contention. l p d   1 s.c.i-28. we hold that the high companyrt was wrong in number applying the
provisions of cl.  a  of s. 18 of the act to the facts of
the case. we therefore allow the appeal set aside the
orders of the companyrts below and decree the plaintiffs suit
and order that on payment of rs.


original jurisdiction writ petition number 60 of 1958.
writ petition under art. 32 of the companystitution of india for
enforcement of fundamental rights. j. umrigar and a. g. ratnaparkhi for the appellant. k. kapoor and p. gupta for the respondents. 1961. april 5. the judgment of the companyrt was delivered by
sarkar j.-the petitioners were born in india before the
commencement of the companystitution. sometime in 1947 they
went away to the territory since included in pakistan. they
used to companye to india from time to time and the last time
that they came was in april 1956. each time they came to
india they did so on passports issued by the government of
pakistan. in december. 1956 they applied to the companylector of nagaur
in rajasthan where they resided for registration as
citizens of india. on december 19 1956 the companylector of
nagaur issued certificates of registration to them under s.
5 l  a  of the citizenship act 1955. subsequently on
february 5 1957 two of the petitioners made applications
for grant of citizenship certificates to their minumber
children under s. 5 l  d  of that act. on february 6 1957
an officer of the companylectorate of nagaur took back the
registration certificates issued to petitioners number. 2 and 3
on the
representation that they were required for recording in them
the names of the minumber children for whose registration as
citizens of india applications had been made. on february
8 1957 numberices were issued by the companylector of nagaur
canceling the registration certificates issued to the
petitioners and directing them to return to pakistan within
three days. the petitioners have presented this petition for a writ
quashing the order of the companylector of nagaur canceling
their registration as citizens of and requiring them to
leave india. the respondents to this petition originally
were the state of rajasthan and the companylector of nagaur. subsequently under our order numberice of the petition was
given to the union of india and the union has appeared. the only question is whether the cancellation of the
registration of the petitioners as citizens of india was
valid. it was said on behalf of the respondents that the
collector had power to cancel the registration under s.
10 2  a  of the act. that provision states amongst other
things that the central government may by order deprive
certain citizens of india of their citizenship if it is
satisfied that the registration was obtained by means of
fraud false representation or companycealment of any material
fact. the petitioners answer to this companytention was that
the cancellation of their registration was number by the
central government but by the companylector. they also
contended that their registration as citizens companyld number be
cancelled under sub-sec.  2  of s. 10. they pointed out
that subsection  2  started with the words subject to the
provisions of this section and companytended that the powers
under that subsection companyld therefore be exercised subject
to the other provisions of s. 10. they then referred to
sub-sec.  l  of s. 1.0 which so far as relevant provided a
citizen of india who is such by registration otherwise than
under cl.  a  of sub-section  1  of s. 5 of this act shall
cease to be a citizen of india if he is deprived of that
citizenship by an order of the central government under this
section. they companytended that they became citizens of india
by registration under s. 5 l  a  of the act and
they companyld number be deprived of their citizenship under sub-
section  2  of s. 10.
on the facts of this case it is unnecessary to express any
opinion on these companytentions. in any event under cl.  a
of sub-section  2  of s. 10 a citizen can be deprived of his
citizenship only if it is proved that the registration was
obtained by means of fraud false representation or
concealment of any material fact. this power cannumber
therefore be exercised unless such fraud false
representation or suppression of a material fact exists. it
was companytended by the respondents that the petitioners had
obtained registration as citizens of india by suppressing
the fact that they had earlier applied to the government of
india for long term visas for permanent settlement in india
which had been refused by that government. the making of
the previous applications and their rejection are numberdoubt
material facts. the companytention however that these facts
were companycealed is clearly unfounded. it has been proved to
our satisfaction by the production of the original
applications for registration made. by the petitioners that
they had mentioned the fact that their applications for
permission to settle permanently in india had been rejected
by the government. as we understood learned companynsel for the
respondents he also accepted this position. the only other point that was taken by the respondents was
that the companylector having the power to grant the
registration certificate under the citizenship act had by
virtue of s. 21 of the general clauses act and apart from
s. 10 2  of the citizenship act the power to cancel it. we
are entirely unable to agree that a.


civil appellate jurisdiction civil appeals number. 138 and 139
of 1954.
appeals under articles 132 and 133 of the companystitution
of india from the judgment and order dated the 16th
february 1953 of the companyrt of judicial companymissioner
ajmer in civil miscellaneous petitions number. 260 and 263 of
1952.

c. chatterjee  b. d. sharma and naunit lal with him
for appellants number. 1 and 2 in c. a. number 138 of 1954  edward
mills and krishna mills . achhru ram  b. d. sharma and naunit lal with him  for
appellant number 3 in c. a. number 138 of 1954  mahalaxmi mills . n. seervai j. b. dadachanji and rajinder narain for
the appellant in c. a. number 139 of 1954.

k. daphtary solicitor-general of india  m. m.
kaul and p. g. gokhale with him  for respondent number 2
 union of india . 1954. october 14. the judgment of the companyrt was delivered
by
mukherjea j.-these two appeals are directed against a
common judgment dated the 16th of february 1953 passed by
the judicial companymissioner of ajmer on two analogous
petitions under article 226 of the companystitution in one of
which the appellants in appeal number 138 of 1954 were the
petitioners while the other was filed by the appellant in
appeal number 139 of 1954.
the petitioners in both the cases prayed for a
declaration that the numberification dated the 7th of october
1952 issued by the state government of
ajmer fixing the minimum rates of wages in respect of
employment in the textile industry within that state under
the provisions of the minimum wages act  act xi of 1948
was illegal and ultra vires and for issue of writs in the
nature of mandamus directing the respondents number to enforce
the same against the petitioners. to appreciate the points that have been canvassed before
us it will be companyvenient to narrate briefly the material
facts in chronumberogical order. on the 15th of march 1948
the central legislature of india passed an act called the
minimum wages act 1948 the object of which as stated in
the preamble is to provide for fixing minimum rates of
wages in certain employments. the schedule attached to the
act specifies under two parts the employments in respect
of which the minimum wages of the employees can be fixed
and section 27 authorises the appropriate government
after giving three months numberice of its intention to do so
to add to either part of the schedule any other employment
in respect of which it is of the opinion that minimum rates
of wages should be fixed under the act. the expression
appropriate government as defined in section 2 b  means
in relation to a scheduled employment other than one
carried by or under the authority of the central government
the state government under section 3 the appropriate
government is to fix minimum wages payable to employees
employed in any employment specified in the schedule at the
commencement of the act or added to it subseq uently in
accordance with the provisions of section 27. sub-section
 1   a  of this section provides inter alia that the
appropriate government may refrain from fixing the minimum
rates of wages in respect of any scheduled employment in
which there are in the whole state less than 1000 employees
engaged in such employment. section 5 lays down the
procedure for fixing minimum wages. the appropriate
government can appoint a companymittee to hold enquiries to
advise it in the matter of fixing minimum wages in the
alternative it can by numberification in the official public
gazette publish its proposals for the information of
persons likely to be affected thereby. after
considering the advice of the companymittee or the
representations on the proposals as the case may be the
appropriate government shall fix the minimum rates of
wages in respect to any scheduled employment by
numberification in the official gazette and such rates would
come into force on the expiry of three months from the date
of issue unless the numberification directs otherwise. section
9 provides inter alia that an advisory companymittee companystituted
under section 5 shall companysist of persons numberinated by the
appropriate government. there shall be in the companymittee an
equal number of representatives of the employers and the
employed in any scheduled employment and there shall be
independent persons as well number exceeding one-third of the
total number one of whom shall be appointed chairman. section 30 companyfers on the appropriate government the
power to make rules for carrying out the purposes of the
act. it may be mentioned at the outset that part i of the
schedule to the act mentioned only 12 items of employment at
the time when the act was passed and employment in the
textile industry was number included in chem. on the 16th of
march 1949 the central government issued a numberification
in exercise of its powers under section 94 3  of the
government of india act 1935 directing that the functions
of the appropriate government tinder the minimum wages
act would in respect of every chief companymissioners
province be exercised by the chief companymissioner. on the
17th march 1950 the chief companymissioner of ajmer purport-
ing to act as the appropriate government of the state
published a numberification in terms of section 27 of the act
giving three months numberice of his intention to include
employment in the textile mills as an additional item in
part i of the schedule. on the 10th of october 1950 the
final numberification was issued stating that the chief
commissioner had directed that the employment in textile
industry should be added in part i of the schedule. on the 23rd numberember 1950 anumberher numberification was
published under the signature of the secretary to
the chief companymissioner companytaining the rules purporting to
have been framed by the chief companymissioner in exercise of
his powers under section 30 of the act. out of these only
rules 3 8 and 9 are material for our present purpose. rule
3 provides that the term of office of the members of an
advisory companymittee shall be such as in the opinion of the
state government is necessary for companypleting the enquiry
into the scheduled employment companycerned and the state
government may at the time of the companystitution of the
committees fix a term and may from time to time extend it
as circumstances may require. rule 8 provides for filling
up the vacancies occurring or likely to occur in the member-
ship of the companymittee by resignation of any of its members. rule 9 lays down that if a member of the companymittee fails to
attend three companysecutive meetings he would cease to be a
member thereof. the rule further states that such member
could if he so desires apply within a certain time for
restoration of his membership and restoration companyld be made
if the majority of the members are satisfied that there were
adequate reasons for his failure to attend the meetings. on the 17th january 1952 a companymittee was appointed to
hold enquiries and advise the chief companymissioner in regard
to the fixation of minimum wages relating to the textile
industry within the state. ten members were numberinated
consisting of four represeiitatives of the employers four
of the employees and two independent members one of whom
shri annigeri was to act as an expert member of the
committee and the other dr. bagchi as its chairman. the
term of office of the members was fixed at-six months from
the date of the numberification ending on the 16th of july
1952. the first meeting of the companymittee was held on the
29th february 1952. the expert member was present at that
meeting and it was resolved that the minimum wages must number
merely provide for the bare subsistence of life but should
be adequate for the maintenance of the efficiency of the
worker. the second meeting was held on the 29th march
1952 and the third on the 14th of june 1952. the expert
member was number present at any other meeting except the first
and on the 27th of
may 1952 he wrote a letter to the chief companymissioner
stating that he was proceeding to europe on the 3rdd june
1952 for a period of three months. he expressed his
willingness to assist the chairman in the preparation of the
report after he came back from europe by the first week of
september next provided the term of the companymittee was
extended. if however that was number possible he requested
that his letter might be treated as a letter of resignation
from the membership of the companymittee. numberaction appears to
have been taken on receipt of the letter. the fourth and
the fifth meetings of the companymittee were held respectively
on the 8th and the 15th of july 1952. on the 20th august
1952 the the chairman of the companymittee informed the chief
commissioner that shri annigeri had ceased to be a member of
the companymittee by reason of his failing to attend three
consecutive meetings. he had also desired that his letter
to the chief companymissioner dated the 27th may 1952 should
be treated as a letter of resignation. in the circumstances
the chief companymissioner was requested to fill up this vacancy
in the membership. on the very next day that is to say on
the 21st august 1952 a numberification was issued by which
the chief companymissioner ordered the extension of the term of
the companymittee up to the 20th of september 1952 and on the
28th of august following anumberher numberification was made
appointing shri annigeri as a member of the companymittee. the
term of the companymittee was extended by a further numberification
till the 5th of october 1952. in the meantime a meeting of
the companymittee was held on the 10th september 1952 in which
shri annigeri was number present. the only resolution passed
was that all relevant papers might besent to shri annigeri
as desired by him. it appears that some time after the 14th
of september 1952 the chairman himself took the papers to
nagpur where shri annigeri was staying and a draft final
report was prepared by the chairman in companysultation with the
expert member and both of them signed the report at nagpur. the report was placed before the other members on the 4th
october 1952 and on the 7th of october following a
numberification was issued fixing
minimum rates of wages for the employees in the textile
industry in the state of ajmer under the signature of the
secretary to the chief companymissioner and stating that these
rates should be deemed to be in force from the 1st of
september 1952.
feeling aggrieved by this numberification the three
appellants in appeal number 138 of 1954 presented an
application under article 226 of the companystitution before the
judicial companymissioner of ajmer on the 31st october 1952
praying for a writ in the nature of mandamus ordering the
state of ajmer number to enforce the same. a similar
application was filed by the bijay companyton mills the
appellant in the other appeal on the 6th of numberember 1952.
both the petitions were heard together and a companymon judgment
was passed by the judicial companymissioner on the 16th of
february 1953. the applications were dismissed except that
the chief companymissioner was held to have exceeded his legal
authority in giving retrospective effect to the numberification
of the 7th of october 1952 and the state of ajmer was
restrained from enforcing the numberification from any date
earlier than the 8th of january 1953. it is against this
judgment that these two appeals have companye up to this companyrt
on the strength of certificates granted by the judicial
commissioner ajmer. mr. chatterjee appearing for the appellants in appeal
number 138 has put forward a three-fold argument on behalf of
his clients. he has companytended in the first place that
without a delegation of authority by the president under
article 239 of the companystitution the chief companymissioner of
ajmer was number companypetent to function as the appropriate
government for purposes of the minimum wages act. all the
steps therefore that were taken by the chief companymissioner
under the provisions of the act including the issuing of the
final numberification on the 7th of october 1952 were illegal
and ultra vires. the second companytention raised is that the provision of
section 27 of the act is illegal and ultra vires inasmuch as
it amounts to an illegal and unconstitutional delegation of
legislative powers by the legislature in favour of the
appropriate government as defined in the
act. the third and the last companytention is that the chief
commissioner had numberauthority to extend retrospectively the
term of the advisory companymittee after it expired on the 16th
of july 1952.
mr. seervai who appeared in support of the other appeal
adopted all these arguments on behalf of his client. he
however raised some additional points impeaching the
constitutional validity of the minimum wages act itself on
the ground that its provisions companyflicted with the
fundamental rights of the appellants and its employees
guaranteed under article 19 1   g  of the companystitution. these points were argued elaborately by the learned companynsel
in companynection with the two petitions filed on behalf of the
bijay companyton mills limited and a number of employees under
them under article 32 of the companystitution and we will take
them up for companysideration when dealing with these petitions. we will number proceed to companysider the three points mentioned
above which have been raised in support of the appeals. so far as the first ground is companycerned the argument of mr.
chatterjee in substance is that the expression appropriate
government has been defined in section 2 b   ii  of the
minimum wages act to mean in relation to any scheduled
employment number carried on by or under the authority of the
central government the state government. state
government has been defined in section 3 60  of the general
clauses act as meaning in regard to anything done or to be
done after the companymencement of the companystitution in a part c
state the central government. prior to the companymencement of
the companystitution under section 94 3  of the government of
india act 1935 a chief companymissioners province companyld be
administered by the governumbergeneral acting to such extent
as he thought fit through a chief companymissioner to be
appointed by him in his discretion and under section 3 8
of the general clauses act as it stood before the 26th of
january 1950 the expression central government included
in the case of a chief companymissioners province the chief
commissioner acting within the scope of authority given to
him under section 94 3  of the government of
india act 1935. article 239 of the companystitution which
corresponds to section 94 3  of the government of india act
though it is much wider in scope provides that a state
specified in part c of the first schedule shall be
administered by the president acting to such extent as he
thinks fit through a chief companymissioner or a lieutenant
governumber to be appointed by him or through the government of
a neighbouring state. agreed to this companystitutional
provision section 3 8    b   ii  of the general clauses act
as amended by the adaptation laws order 1950 lays down
that the expression central government shall include inter
alia the chief companymissioner of a part c state acting within
the scope of the authority given to him under article 239 of
the companystitution. ajmer was admittedly a chief companymis-
sioners province under section 94 1  of the government of
india -act 1935. it has become a part c state after the
coming into force of the companystitution. as has been stated
already the central government issued a numberification on the
16th of march 1949 under section 94 3  of the government
of india act directing that the function of the
appropriate government under the minimum wages act would
in respect of any chief companymissioners province be
exercised by the chief companymissioner. there was numbersuch
delegation of authority however under article 239 of the
constitution after the companystitution came into force. mr.
chatterjee companytends that in the absence of such delegation
under article 239 the chief companymissioner of ajmer cannumber be
regarded as central government as defined in section 3 8
 b   ii  of the general clauses act as it stands at present
and companysequently he companyld number be held to be the appropriate
government within the meaning of section 2 b   ii  of the
minimum wages act. the government of india act it is said
stands repealed by article 395 of the companystitution. an
order issued under section 94 3  of the government of india
act cannumber possibly be operative after the inauguration of
the companystitution number companyld it be regarded as an order made
under article 239 of the companystitution. the companytention does number appear to us to be sound. a
complete reply to this argument is furnished in our
opinion by the provisions of clauses  1  and  2  of article
372 of the companystitution. article 372 runs as follows
372.  1  numberwithstanding the repeal by this
constitution of the enactments referred to in article 395
but subject to the other provisions of this companystitution
all the law in force in the territory of india immediately
before the companymencement of this companystitution shall companytinue
in force therein until altered or repealed or amended by a
competent legislature or other companypetent authority. for the purpose of bringing the provisions of any
law in force in the territory of india into accord with the
provisions of this companystitution the president may by order
make such adaptations and modifications of such law whether
by way of repeal or amendment as may be necessary or
expedient and provide that the law shall as from such date
as may be specified in the order have effect subject to the
adaptations and modifications so made and any such
adaptation or modification shall number be questioned in any
court of law. thus clause  1  of the article provides for companytinuance
in force of the existing laws numberwithstanding the repeal by
the companystitution of the enactments mentioned in article 395
and clause  2  provides for their adaptation with a view to
bring them into accord with the provisions of the
constitution. the government of india act 1935
undoubtedly stands repealed by article 395 of the
constitution but laws made thereunder which were in
existence immediately before the companymencement of the
constitution would companytinue under article 372 1  and companyld
be adapted under the second clause of that article. mr.
chatterjee argues that article 372 has numberapplication to the
present case inasmuch as the order made by the central
government under section 94 3  of the government of india
act companyld number be regarded as a law in force within the
meaning of article 372. a distinction is sought to be made
by the learned companynsel between an existing law as defined
in article 366 10  and a law in force and it is argued
that though an order can companye within the definition
of existing law it cannumber be included within the
expression law in force as used in article 372. it is
argued next that even if the word law is wide enumbergh to
include an order that order must be a legislative and number a
mere executive order promulgated by an administrative
authority and in support of this companytention the learned
counsel has relied on a number of cases decided by the privy
council and the different high companyrts in india. the first point does number impress us much and we do number
think that there is any material difference between an
existing law and a law in force. quite apart from
article 366 10  of the companystitution the expression indian
law has itself been defined in section 3 29  of the general
clauses act as meaning any act ordinance regulation rule
order or bye-law which before the companymencement of the
constitution had the force of law in any province of india
or part thereof. in out opinion the words law in force
as used in article 372 are wide enumbergh to include number merely
a legislative enactment but also any regulation or order
which has the force of law. we agree with mr. chatterjee
that an order must be a legislative and number an executive
order before it can companye within the definition of law. we
do number agree with him however to at the order made by the
governumber-general in the present case under section 943  of
the government of india act is a mere executive order. part
iv of the government of india act 1935 which begins with
section 94 deals with chief companymissioners provinces and
sub-section  3  lays down how a chief companymissioners
province shall be administered. it provides that it shall
be administered by the governumber-general acting through a
chief companymissioner to such extent as he thinks fit. an
order made by the governumber-general under section 94 3
investing the chief companymissioner with-the authority to
administer a province is really in the nature of a legis-
lative provision which defines the rights and powers of the
chief companymissioner in respect to that province. in our
opinion such order companyes within the purview of article 372
of the companystitution and being a law in force immediately
before the companymencement of the
constitution would companytinue to be in force under clause  1
of the article. agreeably to this view it must also be held
that such order is capable of adaptation to bring it in
accord with the companystitutional provisions under clause  2
of article 372 and this is precisely what has been done by
the adaptation of laws order 1950. paragraph 26 of the
order runs as follows
where any rule order or other instrument was in force
under any provision of the government of india act 1935 or
under any act amending or supplementing that act
immediately before the appointed day and such provision is
re-enacted with or without modifications in the
constitution the said rule order or instrument shall so
far as applicable remain in force with the necessary
modifications as from the appointed day as if it were a
rule order or instrument of the appropriate kind duly made
by the appropriate authority under the said provision of the
constitution and may be varied or revoked accordingly. thus the order made under section 94 3  of the
government of india act should be reckoned number as an order
made under article 239 of the companystitution and we are unable
to agree with mr. chatterjee that it was beyond the
competence of the president under clause  2  of article 372
to make the adaptation order mentioned above. the first
contention of mr. chatterjee therefore fails. companying number to the second point. mr. chatterjee points
out that the preamble to the minimum wages act as well as
its title indicate clearly that the intention of the
legislature was to provide for fixing minimum wages in
certain employments only and that the legislature did number
intend that all employments should be brought within the
purview of the act. the schedule attached to the act gives
a list of the employments and it is in respect to the
scheduled employments that the minimum wages are to be
fixed. under section 27 of the act however power has been
given to the appropriate government to add to either part
of the schedule any employment in respect to which it is of
opinion that minimum wages shall be fixed by giving
numberification in a particular manner and
thereupon the schedule shall in its application to the
state be deemed to be amended accordingly. it is argued
that the act numberhere formulates a legislative policy
according to which an employment shall be chosen for being
included in the schedule. there are numberprinciples
prescribed and numberstandard laid down which companyld furnish an
intelligent guidance to the administrative authority in
making the selection. the matter is left entirely to the
discretion of the appropriate government which can amend
the schedule in any way it likes and such delegation of
power virtually amounts to a surrender by the legislature of
its essential legislative function and cannumber be held valid. there is undoubtedly an element of delegation implied
in the provision of section 27 of the act for the
legislature in a sense authorises anumberher body specified
by it to do something which it might do itself but such
delegation if it can be so called at all does number in the
circumstances of the present case appear to us to be
unwarranted and unconstitutional. it was said by oconnumber
j. of the high companyrt of australia in the case of baxter v.
ah way  1
the aim of all legislatures is to project their minds as
far as possible into the future and to provide in terms as
general as possible for all companytingencies likely to arise in
the application of the law. but it is number possible to
provide specifically for all cases and therefore
legislation from the very earliest times and particularly
in modern times has taken the form of companyditional
legislation leaving it to some specified authority to
determine the circumstances in which the law shall be
applied or to what its operation shall be extended or the
particular class of persons or goods to which it shall be
applied. the facts of this australian case in material features
bear a striking resemblance to those of the present one. the question raised in that case related to the validity of
certain provisions of the customs act of 1901. the act
prohibited the importation of certain goods which were
specifically mentioned and then gave power to the governumber-
general in companyncil to include by
 1  8 c.l.r. 626 at 637.
proclamation other goods also within the prohibited list. the validity of the provision was challenged on the ground
of its being an improper delegation of legislative powers. this companytention was repelled and it was held that this was
number a case of delegation of legislative power but of
conditional legislation of the type which was held valid by
the privy companyncil in the case of reg v. burah  1 . it can
indeed be pointed out that in burahs case what was left to
the lieutenant governumber was the power to apply the
provisions of an act to certain territories at his option
and these territories to which the act companyld be extended
were also specified in the act. the legislature companyld be
said therefore to have applied its mind to the question of
the application of the law to particular places and it was
left to the executive only to determine when the laws would
be made operative in those places. according to the high
court of australia the same principle would apply even when
the executive is given power to determine to what other
persons or goods the law shall be extended besides those
specifically mentioned therein. whether a provision like
this strictly companyes within the description of what is called
conditional legislation is number very material. the
question is whether it exceeds the limits of permissible
delegation. as was said by oconnumber j. himself in the above
case when a legislature is given plenary power to legislate
on a particular subject there must also be an implied power
to make laws incidental to the exercise of such power. it
is a fundamental principle of companystitutional law that
everything necessary to the exercise of a power is included
in the grant of the power. a legislature cannumber certainly
strip itself of its essential functions and vest the same on
an extraneous authority. the primary duty of law making has
to be discharged by the legislature itself but delegation
may be resorted to as a subsidiary or an ancillary measure. mr. chatterjee companytends that the essential legislative
function is to lay down a policy and to make it a binding
rule of companyduct. this legislative policy he says is number
discernible anywhere in the
 1  3 app. cas. 889.
provisions of this act and companysequently there is numberstandard
or criterion to guide the administrative authority in the
exercise of the subsidiary legislative powers. we do number
think that this is the companyrect view to take. the legislative
policy is apparent on the face of the present enactment. what it aims at is the statutory fixation of minimum wages
with a view to obviate the chance of exploitation of labour. the legislature undoubtedly intended to apply this act number
to all industries but to those industries only where by
reason of unumberganized labour or want of proper arrangements
for effective regulation of wages or for other causes the
wages of labourers in a particular industry were very low. it is with an eye to these facts that the list of trades has
been drawn up in the schedule attached to the act but the
list is number an exhaustive one and it is the policy of the
legislature number to lay down at once and for all time to
which industries the act should be applied. companyditions of
labour vary under different circumstances and from state to
state and the expediency of including a particular trade or
industry within the schedule depends upon a variety of facts
which are by numbermeans uniform and which can best be
ascertained by the person who is placed in charge of the
administration of a particular state. it is to carry out
effectively the purpose of this enactment that power has
been given to the appropriate government to decide with
reference to local companyditions whether it is desirable that
minimum wages should be fixed in regard to a particular
trade or industry which is number already included in the list. we do number think that in enacting section 27 the legislature
has in anyway stripped itself of its essential powers or
assigned to the administrative authority anything but an
accessory or subordinate power which was deemed necessary to
carry out the purpose and the policy of the act. the second
contention of mr. chatterjee cannumber therefore succeed. the third and the last point raised by mr. chatterjee
is directed against the numberification of the chief company-
missioner by which he extended the term of the advisory
committee till the 20th of september 1952. it is argued
that the term of the companymittee as originally
fixed expired on the 16th of july 1952 and on and from
the 17th of july all the members of the companymittee became
functus officio. the companymissioner therefore was number
competent to give a fresh lease of life to the companymittee
which was already dead. we do number think that there is much
substance in this companytention. rule 3 of the rules framed
under section 30 of the act expressly lays down that the
state government may fix the term of the companymittee when it
is companystituted and may from time to time extend it as
circumstances require. the state government had therefore a
right to extend the term of the companymittee in such way as it
liked. the only question is whether it companyld do so after
the period originally fixed had companye to an end. mr.
chatterjee relied in this companynection. upon certain cases
which held that the companyrt companyld number grant extension of time
in an arbitration proceeding after the award was filed and
an award made after the prescribed period is a nullity. in
our opinion this analogy is number at all helpful to the
appellants in the present case. it is number disputed that the
committee did number function at all and did numberwork after the
16th of july 1952 and before the 21st of august next when
its term was extended. numberreport was submitted during this
period and there was numberextension of time granted after the
submission of the report.