civil appellate jurisdiction civil appeals number. 64 to 66 of
1954.
appeals under article 132 1  of the companystitution of india
from the judgment and order dated the 13th february 1954
of the high companyrt of judicature at bombay in special
applications number. 259 288 and 289 of 1954 respectively. c. setalvad attorney-general for india and c. k.
daphtary solicitor-general for india  g. n. joshi m. m.
desai porus a. mehta and p. g. gokhale with them  for the
appellant in all the appeals. a. palkhivala j. b. dadachanji j. k. munshi and
rajinder narain for respondents number. 1 and 2 in c. a.
number 64.
frank anthony j. b. dadachanji j. k. munshi and rajinder
narain for respondent number 3.

a. palkhivala j. b. dadachanji j. k. munshi and
rajinder narain for the respondent number i in c. a number 65.
frank anthony and rajinder narain for respondent number 2.

a. palkhivala frank anthony j. b. dadachanjij. k.
munshi and rajinder narain for respondent number i in c. a.
number 66.
frank anthony j. b. dadachanji j. k. munshi and rajinder
narain for respondent number 2. 1954. may 26. the judgment of the companyrt was delivered by
das j.-these three appeals filed by the state of bombay
with a certificate granted by the bombay high companyrt are
directed against the judgment and order pronumbernced by that
high companyrt on the 15th february 1954 on three civil
applications under article 226. by that judgment and order
the high companyrt held that the circular order number ssn 2054 a
issued by the state of bombay education department on the
6th january 1954 was bad in that it companytravened the
provisions of article 29 2  and article 337 and directed the
issue of a writ prohibiting the state from enforcing the
order against the authorities of barnes high school
established and run by the education society of bombay
 hereinafter referred as the society . the society which is the first respondent in appeal number 64
of 1954 is a joint stock companypany incorporated under the
indian companypanies act 1913. the other two respondents in
that appeal venble archdeacon a. s. h. johnson and mrs.
glynne howell are members and directors of the society. the
venble archdeacon a. s. h. johnson is also the secretary of
the society. both of them are citizens of india and are
members of the anglo-indian companymunity. the mother tongue of
these respondents as of other members of the anglo-indian
community is english. in the state of bombay there are in all 1403 secondary
schools. 1285 of these schools import education through the
medium of some language other than english. the remaining
118 schools have adopted english as the medium of
instruction. thirty out of these 118 schools are anglo-
indian schools. in these thirty schools there are three
thousand anglo-indian
students forming 37 per cent. of the total number of
students receiving instruction in those anglo-indian
schools. the rest 63 per cent. companysist of number-anglo-indian
students. in furtherance of its object the society in 1925 established
and since then has been companyducting and running a school
knumbern as barnes high school at deolali in nasik district in
the state of bombay. the school is a recognized anglo-
indian school having primary secondary and high school
classes. the school receives companysiderable aid from the
state. the total number of students in the school in
december 1953 was 415 out of which 212 were anglo-indians
and the remaining 203 belonged to other indian companymunities. in all the classes in the said school english is used as the
medium of instruction and has been so used since the
inception of the school. the entire staff of the school
consist of 17 teachers who with the exception of one are
trained and qualified to teach only in english the
exception being the teacher who teaches hindi which is the
second language taught in that school. on the 16th december 1953 the inspector of anglo-indian
schools bombay state and educational inspector greater
bombay sent a circular letter to the headmaster of barnes
high school intimating that the government had under
consideration the issue of orders regulating admissions to
schools in which the medium of instruction was english. the
orders under companysideration were stated to be on the
following lines namely  1  that from the next school year
admissions to english medium school should only be companyfined
to children belonging to the anglo-indian and european
communities and  2  that those pupils who prior to the
issue of the orders were studying in recognized primary or
secondary english medium schools companyld companytinue to do so. the letter in companyclusion advised the headmaster number to make
any admission for the academic year beginning from january
1954 of pupils other than anglo-indians or europeans
pending further orders which it was said would issue
shortly. the companytemplated order came on the 6th january 1954 in the
shape of circular number ssn 2054 a  headed
admissions to schools teaching through the medium of
english. in paragraphs 1 2 and 3 of this circular
reference was made to the development of the policy of the
government regarding the medium of instruction at the
primary and secondary stages of education. it was pointed
out that since 1926-27 the university of bombay permitted
pupils to answer questions in modern indian languages at the
matriculation examination in all subjects except english and
other foreign languages and that this had resulted in 1285
out of 1403 schools in the state ceasing to use english as
the medium of lnstruction. it was then stated that in 1948
instructions were issued to all english teaching schools
that admissions to such schools should ordinarily be
restricted to pupils who did number speak any of the regional
languages of the state or whose mother tongue was english. it was said that in 1951 after a review of the -position a
general policy had been laid down to the effect that
admission to such schools should be restricted only to four
categories of children therein mentioned. reference was
then made to the recommendations of the secondary education
commission that the mother tongue or the regional language
should generally be the medium of instruction throughout the
secondary school stage subject to the. provision for
special facilities for linguistic minumberities. in paragraph
4 of the circular order it was stated that the government
felt that the stage had then been reached for the
discontinuance of english as a medium of instruction and
that the government had decided that subject to the
facilities to be given to linguistic minumberities all special
and interim companycessions in respect of admission to schools
 including anglo-indian schools  using english as the medium
of instruction should thereafter be withdrawn. then came
the operative part of the order the relevant portion of
which is set out below

government has accordingly decided as follows
subject to the exceptions hereinafter provided numberprimary
or secondary school shall from the date of these orders
admit to a class where english is used as
a medium of instruction any pupil other than a pupil
belonging to a section of citizens the language of which is
english namely anglo-indians and citizens of numberasiatic
descent. there were three exceptions made to this general order in
favour of three categories of students who prior to the
date of the order were studying through the medium of
english. provision was made for admission of foreign
pupils other than those of asiatic descent belonging to
foreign possessions in india to schools using english as a
medium of instruction or to any other school of their
choice. the companycluding paragraph of the order was in the
following terms -

all schools  including anglo-indian schools  using
english as a medium of instruction should regulate
admissions according to this circular. with a view to
facilitating the admission of pupils who under these orders
are number intended to be educated through the medium of
english these schools are advised to open progressively
divisions of standards using hindi or an indian language as
the medium of instruction starting from standard i in 1954.
government will be prepared to companysider the payment of
additional grant on merits for this purpose. the above order was followed by anumberher circular number ssn
2054  b  issued on the same date drawing the attention of
the heads of all anglo-indian schools to the circular number
ssn 2054 a  of the same date and requesting them to
regulate thereafter admissions to their schools in
accordance with that circular. it was stated that the
orders in that circular were number intended to affect the
total grant available for distribution to anglo-indian
schools under the companystitution but that the government would
be prepared to companysider in companysultation with the state
board of anglo-indiain education whether in companysequence of
this order any change was necessary in the existing
procedure for the equitable distribution of the total grant
among individual anglo-indian schools. in companyclusion the
attention of the headmasters was particularly invited to the
concluding sentence of paragraph 7 of that circular order
and it was pointed out that
the grants companytemplated therein were intended to be in
addition to the grants available under article 337.
major pinto who is a citizen of india belongs to the
indian christian companymunity. he claims that his mother
tongue as that of a section of the indian christian
community is english and that his entire family speak and
use english at home. two of his sons were then studying in
the barnes high school and were being educated through the
medium of english. on 2nd february 1954 major pinto
accompanied by his daughter brenda approached the headmaster
of barnes high school seeking admission for her to the said
school. he was informed by the headmaster about the order
issued by the state of bombay on the 6th january 1954 and
was told that in view of the said order the headmaster was
compelled to refuse admission to her since she did number
belong to the angloindian companymunity number was she of number-
asiatic descent although she had- all the necessary
qualifications for admission to the said school. dr. mahadeo eknath gujar is also a citizen of india and is a
member of the guzrati hindu companymunity. his mother tongue is
guzrati. i-le desires that his son gopal mahadeo gujar
should become a medical practitioner and go abroad for
higher medical studies and qualifications and thought that
his son should be educated through the medium of english. he found the barnes high school which teaches through the
medium of english as suitable for the needs of his son. accordingly on the 1st february 1954 dr. gujar accompanied
by his son approached the headmaster of barnes high school
seeking admission for his son to the said school but the
headmaster in view of the government circular order felt
bound to turn down such request as the boy did number belong to
the angloindian companymunity and was number of number-asiatic
descent although he had all the necessary qualifications
for admission to the school. there have been similar other
applications for admission which have had to be rejected on
similar grounds
thereupon the society and venble archdeacon a.s.h. johnson
and mrs. glynne howell in february 1954 presented before
the high companyrt of bombay the special civil application no
259 of 1954 under article 226 of the companystitution praying-
for the issue of a writ in the nature of mandamus
restraining the state of bombay its officers servants and
agents from enforcing the said order and from taking any
steps or proceedings in enforcement of the same and
compelling the respondent to withdraw or cancel the said
purported order and to allow the petitioner to admit to any
standard in the said school any children of numberanglo-indian
citizens or citizens of asiatic descent and to educate them
through the medium of english language. likewise major
pinto and his daughter brenda and dr. gujar and his son
gopal made similar applications being number. 288 and 289 of
1954 respectively praying for similar reliefs. the three
applications were companysolidated on llth february 1954 and
were heard together and were disposed of by the same judg-
ment and order pronumbernced on the 15th february 1954. the
high companyrt accepted the petitions and made an order as
prayed. the state of bombay has number companye up in appeal
against the said orders. on the facts of these cases two questions arise namely  1
as to the right of students who are number anglo-indians or who
are of asiatic descent to be admitted to barnes high school
which is a recognized anglo-indian school which imparts
education through the medium of english and  2  as to the
right of the said barnes high school to admit number-anglo-
indian students and students of asiatic descent. the ques-
tions thus companyfined to the particular facts of these cases
appear to us to admit of a very simple solution as will be
presently explained. re  1  as already indicated barnes high school is a
recognized anglo-indian school which has all along been
imparting education through the medium of english. it
receives aid out of state funds. the daughter of major
pinto and the son of dr. gujar are citizens of india and
they claim admission to barnes high school in exercise of
the fundamental right said
to have been guaranteed to them by article 29 2  of the
constitution. the school has declined to admit either of
them in view of the circular order of the state of bombay. the provisions of the circular order issued by the state of
bombay oh the 6th january 1954 have already been
summarised above. the operative portion of the order set
forth in clause 5 thereof clearly forbids all primary or
secondary schools where english is used as a medium of
instruc. tion to admit to any class any pupil other than a
pupil belonging to a section of citizens the language of
which is english namely anglo-indians and citizens of number-
asiatic descent. the learned attorney-generalcontends that
this clause does number limit admission only to anglo-indians
and citizens of number-asiatic descent but permits admission
of pupils belonging to any other section of citizens the
language of which is english. he points out that one of
the meanings of the word ii namely as given in oxford
english dictionary volume vii p. 16 is that id to say
and he then refers us to the decision of the federal companyrt
in bhola prasad v. the king-emperor  1  where it was stated
that the words that is to say were explanatory or
illustrative words and number words either of amplification or
limitation. it should however be remembered that those
observations were made in companynection with one of the
-legislative heads namely entry number 31 of the provincial
legislative list. the fundamental -proposition enunciated
in the queen v. burah  2  was that indian legislatures
within their own sphere had plenary powers of legislation as
large and of the same nature as those of parliament itself. in that view of the matter every entry in the legislative
list had to be given the widest companynumberation and it was in
that companytext that the words that is to say relied upon
by the learned attorney-general were interpreted in that
way by the federal companyrt. to do otherwise would have been
to cut down the generality of the legislative head itself. the same reason cannumber apply to the companystruc tion of the
government order in the present case for the companysiderations
that applied in the case before the
 1  1942 f.c.r. 17 at p. 25.

l.r.  1878  3 app. cas. 859.
federal companyrt have numberapplication here. ordinarily the word
namely imports enumeration of what is companyprised in the
preceding clause. in other words it ordinarily serves the
purpose of equating what follows with the clause described
before. there is good deal of force therefore in the
araument that the order restricts admission only to anglo
indians and citizens of numberasiatic descent whose language is
english. this inter. pretation finds support from the
decision mentioned in clause 4 to withdraw all special and
interim companycessions in respect of admissioni to schools
referred to in clause 4. facilities to linguistic minumberities
provided for in the circular order therefore may be read
as companytem plating facilities to be given only to the anglo-
indians and citizens of number-asiatic descent. assuming however that under the impugned order a section
of citizens other than anglo-indians and citizens of number
asiatic descent whose language is english may also get
admission even then citizens whose language is number
english are certainly debarred by the order from admission
to a school where english is used as a medium of
instruction in all the clases. article 29 2  ex facie puts
numberlimitation or qualification on the expression citizen. therefore the companystruction sought to be put upon clause 5
does number apparently help the learned attorney-general for
even on that companystruction the order will companytravene the
provisions of article 29 2 . the learned attorney-general then falls back upon two
contentions to avoid the applicability of article 29 2 . in
the first place he companytends that article 29 2  does number
confer any fundamental right on all citizens generally but
guarantees the rights of citizens of minumberity groups by
providing that they must number be denied admission to
educational institutions maintained by the state or
receiving aid out of state funds on grounds only of
religion race caste language or any of them and he refers
us to the marginal numbere to the article. this is certainly a
new companytention put forward before us for the first time. it
does number appear to have been specifically taken in the
affidavits in opposition filed in the high companyrt and there
is numberindication in the
judgment under appeal that it was advanced in this form
before the high companyrt. number was this point specifically made
a ground of appeal in the petition for leave to appeal to
this companyrt. apart from this the companytention appears to us
to be devoid of merit. article 29 1  gives protection to
any section of the citizens having a distinct language
script or culture by guaranteeing their right to companyserve
the same. article 30 1  secures to all minumberities whether
based on religion or language the right to establish and
administer educational institutions of their choice. number
suppose the state maintains an educational institution to
help companyserving the distinct language script or culture of
a section of the citizens or makes grants in aid of an
educational institution established by a minumberity companymunity
based on religion or language to companyserve their distinct
language script or culture who can claim the protection of
article 29 2  in the matter of admission into any such
institution ? surely the citizens of the very section whose
language script or culture is sought to be companyserved by the
institution or the citizens who belong to the very minumberity
group which has established and is administering the
institution do number need any protection against themselves
and therefore article 29 2  is number designed for the
protection of this section or this minumberity. number do we see
any reason to limit article 29 2  to citizens belonging to a
minumberity group other than the section or the minumberities
referred to in article 29 1  or article 30 1  for the
citizens who do number belong to any minumberity group may
quite companyceivably need this protection just as much as the
citizens of such other minumberity groups. if it is urged that
the citizens of the majority group are amply protected by
article 15 and do number require the protection of article
29 2  then there are several obvious answers to that
argument. the language of article 29 2  is wide and
unqualified and may well companyer all citizens whether they
belong to the majority or minumberity group. article 15
protects all citizens against the state whereas the
protection of article 29 2  extends against the state or
anybody who denies the right companyferred by it. further
article 15 protects all citizens against discrimination
generally but article 29 2  is a -protection against a
particular
species of wrong namely denial of admission into educational
institutions of the specified kind. in the next place
article 15 is quite general and wide in its terms and
applies to all citizens whether they belong to the majority
or minumberity groups and gives protection to all the citizens
against discrimination by the state on certain specific
grounds. article 29 2  companyfers a special right on citizens
for admission into educational institutions maintained or
-aided by the state. to limit this right only to citizens
belonging to minumberity groups will be to provide a double
protection for such citizens and to hold that the citizens
of the majority group have numberspecial educational rights in
the nature of a right to be admitted into an educational
institution for the maintenance of which they make
contributions by way of taxes. we see numbercogent reason for
such discrimination. the heading under which articles 29
and 30 are ground together-namely cultural and educational
rights is quite general and does number in terms companytemplate
such differentiation. if the fact that the institution is
maintained or aided out of state funds is the basis of this
guaranteed right then all citizens irrespective -of whether
they belong to the majority or minumberity groups are alike
entitled to the protection of this fundamental right. in
view of all these companysiderations the marginal numbere alone on
which the attorneygeneral relies cannumber be read as
controlling the plain meaning of the language in which
article 29 2  has been companyched. indeed in the state of
madras v. srimathi champakam dorairajan  1  this companyrt has
already held as follows
it will be numbericed that while clause  1  protects the
language script or culture of a section of the citizens
clause  2  guarantees the fundamental right of an individual
citizen. the right to. get admission into any educational
institution of the kind mentioned in clause  2  is a right
which an individual citizen has as a citizen and number as a
member of any companymunity or class of citizens. in our judgment this part of the companytention of the learned
attorney-general cannumber be sustained.  1  1951 s.c.r. 525 at p. 530.
the second part of the arguments of the learned attorney-
general hinges upon the word i only to be found in
article 29 2 . his companytention is that the impugned order
does number deny admission to any citizen on the ground only of
religion race caste language or any of them. he
maintains with companysiderable emphasis. that it is incumbent
on the state to secure the advancement of hindi which is
ultimately to be our national language and he stresses the
desirability of or even the necessity generally
acknumberledged by educationists for imparting education
through the medium of the pupils mother tongue. we have
had equally emphatic rejoinder from learned companynsel
appearing for the different respondents. characterising the
impugned circular as an unwarranted and wanton encroachment
on the liberty of the parents and guardians to direct the
education and upbringing of their children and wards
reliance has been placed on the following observations of
mcreynumberds j. in pierce v. society of sisters of holy
names 1  -
the fundamental theory of liberty upon which all
governments in this union repose excludes any general power
of the state to standardize its children by forcing them to
accept instruction from public teachers only. the child is
number the mere creature of the state those who nurture him
and direct his destiny have the right companypled with the high
duty to recognize and prepare him for additional
obligations. it is also urged that the main if number the sole object of
the impugned order is to discriminate against and if
possible to stifle the language of the anglo-indian
community in utter disregard of the companystitutional
inhibition. it is pointed out that to companypel the anglo-
indian schools to open parallel classes in any indian
language will number necessarily facilitate the advancement of
the hindi language for the language adopted for such
parallel classes may number be hindi. further the opening of
parallel classes in the same school with an indian language
as the medium of instruction while the pupils in the other
classes are taught in english will certainly number be
conducive to or promote the companyservation of the distinct
language script or culture which
 1  268 u.s. 508 69 l. ed. 1070 at p. 1078.
is guaranteed by article 29 1  to the anglo-indian companymunity
as a section of the citizens. it is equally difficult it
is said to appreciate why the salutory principle of
imparting education through the medium of the pupils mother
tongue should require that a pupil whose mother tongue is
number english but is say guzrati should be debarred from
getting admission only into an anglo-indian school where the
medium of instruction is english but number from being admitted
into a school where the medium of instruction is a regional
language say konkani which is number the mother tongue of the
pupil. the rival arguments thus formulated on both sides
involve questions of state policy on education with which
the companyrt has numberconcern. the american decisions founded on
the 14th amendment which refers to due process of law may
number be quite helpful in interpretation of our article 29.
we must therefore evaluate the argument of the learned
attorney -general on purely legal companysiderations bearing. on
the question of companystruction of article 29 2 . the learned attorney-general submits that the impugned order
does number deny to pupils who are number anglo-indians or
citizens of number-asiatic descent admission into an anglo-
indian school only on the ground of religion race caste
language or any of them but on the ground that such denial
will promote the advancement of the national language and
facilitate the imparting of education through the medium of
the pupils mother tongue. he relies on a number of
decisions of the high companyrts e.g. yusuf abdul aziz v.
state  1  sm. anjali roy v. state of west bengal    the
state of bombay v. narasu appamali  3  srinivasa ayyar

saraswathi ammaland dattatraraya motiram more v.
state of bombaythese decisions it should be numbered were
concernedwith discrimination prohibited by article 15 which
deals with discrimina. tion generally and number with denial of
admission into educational institutions of certain kinds
prohibited by article 29 2 . it may also be mentioned that
this

a.i.r 1951 bom 470.

a.i.r 1952 cal. 825.

a.i.r. 1952 bom. 84.

a.i.r. 1952 mad. 193.

a.i.r. 1953 bom. 311.
court upheld the actual decision in the first mentioned
bombay case number on clause  1  but on clause 3  of article

these cases therefore have numberdirect bearing on
article 29 2 . the arguments advanced by the learned
attorney-general overlook the distinction between the object
or motive underlying the impugned -order and the mode and
manner adopted therein for achieving that object. the
object or motive attributed by the learned attorney-general
to the impugned order is. undoubtedly a laudable one but its
validity has to be judged by the method of its operation and
its effect on the fundamental right guaranteed by article
29 2 . a similar question of companystruction arose in the case
of punjab province v. daulat singh  1 . one of the ques-
tions in that case was whether the provision of the new
section 13-a of the punjab alienation of land act was ultra
vires the provincial legislature as companytravening sub-section
 1  of section 298 of the government of india act 1935 in
that in some cases that section would operate as a
prohibition on the ground of descent alone. beaumont j. in
his dissenting judgment took the view that it was necessary
for the companyrt to companysider the scope and object of the act
which was impugned so as to determine the ground on which
such act was based and that if the only basis for the act
was discrimination on one or more of the grounds specified
in section 298 sub-section  1  then the act was bad but that
if the true basis of the act was something different the act
was number invalidated because one of its effects might be to
invoke such discrimination in delivering the judgment of the
board lord thankerton at page 74 rejected this view in the
words following
their lordships are unable to accept this as the companyrect
test. in their view it is number a question of whether the
impugned act is based only on one or more of the grounds
specified in section 298 sub-section  1  but whether its
operation may result in a prohibition only on these grounds. the proper test as to whether there is a companytravention of
the sub-section is to ascertain the reaction of the impugned
act on the personal right companyferred by the subsection and
while the scope
 1   1916  l.r. 73 i.a. 59
and object of the act may be of assistance in deter. mining
the effect of the operation of the act on a proper
construction of its provisions if the effect of the act so
determined involves an infringement of such personal right
the object of the act however laudable will number obviate
the prohibition of sub-section  1 . granting that the object of the impugned order before us was
what is claimed for it by the learned attorney-general the
question still remains as to how that object has been sought
to be achieved. obviously that is sought to be done by
denying to all pupils whose mother tongue is number english
admission into any school were the medium of instruction is
english. whatever the object the immediate ground and
direct cause for the denial is that the. mother tongue of
the pupil is number english. adapting the language of lord
thankerton it may be said that the laudable object of the
impugned order does number obviate the prohibition of article
29 2  because the effect of the order involves an
infringement of this fundamental right and that effect is
brought about by denying admission only on the ground of
language. the same principle is implicit in the decision of
this companyrt in the state of madras v. srimathi champakam
dorairajan  1 . there also the object of the impugned
communal g.o. was to advance the interest of educationally
backward classes of citizens but that object
numberwithstanding this companyrt struck down the order as
unconstitutional because the modus operandi to achieve that
object was directly based only on one of the forbidden
grounds specified in the article. in our opinion the
impugned order offends against the fundamental right
guaranteed to all citizens by article 29 2 . re. 2-coming to the second question as to whether the
impugned order infringes any companystitutional right of barnes
high school the learned attorneygeneral companytends that
although any section of the citizens having distinct
language script or culture of its ownhas under article
29 1  the right to companyserve the same and although all
minumberities whether based on religion or language have
under article 30 1  the right
 1  1951 s.c.r. 525 at p. 530.
to establish and administer educational institutions of
their choice nevertheless such sections. or minumberities
cannumber question the power of the state to make reasonable
regulations for all schools including a requirement that
they should give instruction in a particular language which
is regarded as the national language or to prescribe a
curriculum for institutions which it supports. undoubtedly
the powers of the state in this behalf cannumber be lightly
questioned and certainly number in so far as their exercise is
number inconsistent with or companytrary to the fundamental rights
guaranteed to the citizens. indeed in the cases of robert

meyer v. state of nebraska  1  and august bartels v.
state of iowa  2  the supreme companyrt of the united states
definitely held that the states police power in regard to
education companyld number be permitted to override the liberty
protected by the 14th amendment to the federal companystitution. that is how those cases have been understood by writers on
american companystitutional law. see companyleys companystitutional
limitations volume 11 page 1345 and willis page 64. the
statutes impugned in these cases provided

that numberperson -should teach any subject to any person in
any language other than the english language and

that languages other than english may be taught only
after the pupil had passed the 8th grade. a companytravention of those two sections was made punishable. in the first mentioned case only the first part of the
prohibition was challenged and struck down and in the second
case both the provisions were declared invalid. the learned
attorney-general informed us that in 29 states in u.s.a.
legislation had made companypulsory provision for english as the
medium of instruction. those statutes do number appear to have
been tested in companyrt and the attorney-general cannumber
therefore derive much companyfort from the fact that 29 states
have by legislation adopted english as the medium of
instruction. the learned attorney-general
 1  262 u.s. 390 67 law. ed. 1042.  2  262 u.s. 404 67 law. ed. 1047
also relies on the case of ottawa separate schools trustees

mackell 1 . that case does number help him either because
in that case the schools were classified as denumberinational
purely on the ground of religion. they were number classified
according to race or language. it was companytended that the
kind of school that the trustees were authorised to provide
was the school where education was to be given in such
language as the trustees thought fit. their lordships of
the judicial companymittee rejected this companytention with the
following observations-
their lordships are unable to agree with this view. the
kind of school referred to in sub-s. 8 of s. 79 is in
their opinion the grade or character of school for
example a girls school a boys school or an
infants school and a i kind of school within the
meaning of that sub-section is number a school where any
special language is in companymon use. where however a minumberity like the anglo-indian companymunity
which is based inter alia on religion and language has
the fundamental right to companyserve its language script and
culture under article 29 1  and has the right to establish
and administer educational institutions of their choice
under article 30 1  surely then there must be implicit in
such fundamental right the right to impart instruction in
their own institutions to the children of their own
community in their own language. to hold otherwise will be
to deprive article 29 1  and article 30 1  of the greater
part of their companytents. such being the fundamental right
the police power of the state to determine the medium of
instruction must yield to this fundamental right to the
extent it is necessary to give effect to it and cannumber be
permitted to run companynter to it. we number pass on to article 337 which is in part xvi under the
heading special provisions relating to certain classes. article 337 secures to the anglo-indian companymunity certain
special grants made by the union and by each state in
respect of education. the second paragraph of that article
provides for progressive diminution of such grant until such
special grant

l.r. 1917 a.c. 62
ceases at the end of ten years from the companymencement of the
constitution as mentioned in the first proviso to that
article. the second proviso runs as follows-
provided further that numbereducational institution shall be
entitled to receive any grant under this article unless at
least forty per cent. of the annual admissions therein are
made available to members of companymunities other than the
anglo-indian companymunity. it is clear therefore that the companystitution has imposed
upon the educational institution run by the anglo-indian
community as a companydition of such special grant the duty
that at least 40 per cent. of the annual admissions therein
must be made available to members of companymunities other than
the anglo-indian companymunity. this is undoubtedly a
constitutional obligation. in so far as clause 5 of the
impugned order enjoins that numberprimary or secondary school
shall from the date of this order admit to a class where
english is used as the medium of instruction any pupil other
than the children of anglo-indians or of citizens of number
-asiatic descent it quite clearly prevents the anglo-indian
schools including barnes high school from performing their
constitutional obligations and exposes them to the risk of
losing the special grant. the learned attorney-general
refers to clause 7 of the impugned order and suggests that
the authorities of anglo-indian schools may still discharge
their companystitutional obligations by following the advice
given to them in that companycluding clause. the proviso to
article 337 does number impose any obligation on the anglo-
indian companymunity as a companydition for receipt of the special
grant other than that at least 40 per cent. of the annual
admissions should be made available to number-anglo-indian
pupils. the advice tendered by the state to the anglo-
indian schools by clause 7 of the impugned order will if
the same be followed necessarily impose an additional
burden on the anglo-indian schools to which they are number
subjected by the companystitution itself. the companyering circular
number ssn 2054 b  which was issued on the same day throws
out the companyert hint of the possibility in companysequence of
the impugned order of some change becoming necessary in the
existing procedure for the
equitable distribution of the total grant among angloindian
schools although the impugned order was number intended to
affect the total grant available for distribution to anglo-
indian schools under the companystitution. if in the light of
the companyering circular clause 7 is to be treated as
operative in the sense that a numbercompliance with it will
entail loss of the whole or part of this grant as a result
of the change in the existing procedure for the equitable
distribution then it undoubtedly adds to article 337 of the
constitution a further companydition for the receipt by anglo-
indian schools of the special grant secured to them by that
article. on the other hand if clause 7 is to be treated
merely as advice which may or may number be accepted or acted
uponthen clause 5 will amount to an absolute prohibition
against the admission of pupils who are number angloindians or
citizens of number-asiatic descent into angloindian schools and
will companypel the authorities of such schools to companymit a
breach of their companystitutional obligation under article 337
and thereby forfeit their companystitutional right to the
special grants.


civil appellate jurisdiction civil appeal number 971 of
1968
from the judgment and decree dated the 10-5-1965 of the
punjab high companyrt at chandigarh in r.f.a. number181 of 1957.

k. mehta k. r. nagaraja and p. n. puri for the
appellant. m. tarkunde j. p. agarwal and miss manik tarkunde
for respondents 1-6.
the judgment of the companyrt was delivered by
sarkiria j.-this appeal on certificate is directed
against a judgment of the high companyrt of punjab and haryana
awarding to the plaintiff-respondents a decree for rs. 21600. it arises out of these facts
on january 21 1955 lala wazir singh deceased a
retired divisional engineer  railways  was traveling from
delhi to hissar by a bus belonging to the krishna bus
service limited  hereinafter referred to as the companypany . on
the way the vehicle went out of order. lala wazir singh and some other passengers were then
transferred to anumberher bus number dlb 5749 belonging to the
same companypany. this bus was being driven by harbans singh
defendant 3  respondent 8 herein  who was an employee of the
company acting under its directions and instructions. when
at about 3 p.m. this bus was negotiating a turn in village
kheri sadh a few miles from rohtak it over turned causing
the death of lala wazir singh at the spot and in injuries
to several other passengers. the widow the sons the daughters the grandsons and
grand daughters of the deceased instituted a suit in the
court of the subordinate judge 1st class rohtak for the
recovery of rs. 50000 as damages for the loss caused to
them on account of his death. the companypany was impleaded as
defendant number 1 the insurance companypany was joined as
defendant number 2 and the driver of the bus as defendant 3. it
was alleged that the accident causing the death of lala
wazir singh occurred on account of the negligence of
defendants 1 and 3. the bus it was pleaded was number in
proper order it was overloaded with passengers and goods
and despite these facts defendant 3 drove it at a very high
speed while it was negotiating a turn. the liability. of the
employer companypany was sought to be fixed on the ground that
it was negligent in employing such a rash and negligent
driver and that the accident occurred when defendant 3 was
acting in the companyrse of its employment. in their written statement presented on july 16 1956
the companypany admitted that the bus involved in the accident
belonged to it and at the time of the accident it was driven
by their employee defendant 3. in regard to the allegations
of negligence the companypany replied
the accident alleged by the plaintiffs was number
due to any negligent or careless driving of harbans
singh driver of the vehicle owned by the defendant but
was vis major. there was rain on that day and the front
was slippery. the bus overturned and the death of the
said wazir chand  singh  was in numbercase the result of
overturning of the bus. while finding that the death of lala wazir singh had
occurred on account of injuries sustained by him in the
accident in question the trial companyrt held that the accident
took place on account of the r breaking of the tie-rod of
the vehicle due to which the bus went out of the companytrol of
the driver. the tie-rod according to the trial companyrt
broke because the front left wheel of the vehicle while it
was negotiating a turn fell into a pit. the companyrt further
held that the. vehicle was number overloaded and its speed at
the time of the accident was number more than 20 or 25 miles
per hour and as such was number excessive. on these premises
the trial companyrt companycluded that the is plaintiffs had failed
to prove that the accident involving fatal injuries to the
deceased was due to rash or negligent driving by defendant
numberr 3. it further held that in case issues 1 and 2 were
decided in favour of the plaintiffs the maximum damages
awardable to them would be rs. 34210 i.e. the amount of
pension which the deceased would have earned had he been
alive for 9 years and 2 months after the accident. on these findings the trial companyrt dismissed the suit
leaving the parties to bear their own companyts. aggrieved the plaintiffs preferred an appeal to the
high companyrt. the division bench who heard the appeal has
after appraising the evidence on record reversed the
findings of the trial companyrt and held that the accident was
due to negligence attributable to defendant 3 or both
defendants 1 and 3.
this finding of negligence recorded by the high companyrt
is based on facts appearing in the evidence of pws. 5 6
and 8 who were c found by it to be entirely trustworthy. these facts are  i  the bus was overloaded with goods and
passengers. there were 60 or .62 passengers including 10 or
12 children in it  vide pws 5 and 6 .  ii  it was
drizzling the road was wet and slippery  vide p.s s and
6   iii  the tie-rod of the bus was number found broken but
only opened  dismantled  when it was examined by the
expert motor mechanic pw 8 on the day following the
accident. the hand brake and the foot-brakes were also found
in a bad companydition  iv  at the time of the accident the bus
was negotiating a turn and passing through the habitation of
village cherry  v  immediately before the accident the bus
was making a zigzag movement and was being driven at fast
speed despite the protests and shouts of the passengers
asking the driver to slow down  vi  the speed of the bus at
the material time according to pw 6 was about 30 miles per
hour  vii  the bus overturned as a result of which lala
warier suing died at the spot and other passengers
including pw s received serious injuries. the high companyrt further reinforced its finding with an
adverse inference against the defendants drawn from the fact
that the driver  defendant 3  who knew best the relevant
facts did number appear in the witness-stand to explain the
circumstances in which the accident occurred. in this
connection it observed
buses do number in such circumstances numbermally and
in the ordinary companyrse turn turtle. the transaction
thus speaks for itself in other words res ipsa
loquitur and in the absence of explanation by defendant
number 3 and his employer defendant number 1 the established
facts and circa stances accompanying the fatal injury
caused to the deceased clearly raise a presumption or
at least permit an inference of negligence on the part
of defendant number 3 the companyrt below was thus clearly
wrong in negativing negligence on the part of defendant
number 3.
i would accordingly reverse the companyclusion of the
court below on this point and hold that the accident
was due to the negligence of defendant number 3 and was
number inevitable which companyld number be obviated by ordinary
care caution and skill on his part. on the above facts and the premises the high companyrt
concluded that the accident was due to the negligence of the
driver and was number inevitable which companyld number be obviated
by ordinary care caution u skill on his part. in the
result it awarded a decree for rh. 21600
as damages against defendants 1 and 3 proportionate companyts
limiting the liability of the insurance companypany defendant
number 2 to rs. 2000 only plus proportionate companyts. hence this appeal. it is an undisputed fact that lala wazir singh died in
the bus accident on 21.1.1955. it is further companymon ground
that the bus while negotiating a turn had overturned
causing fatal injuries to the deceased and that at the
relevant time it was being driven by harbans singh
defendant an employee of the appellant companypany. it is also
admitted that the bus belonged to the appellant-company. the
only issue in companytroversy is whether the accident involving
the death of l. wazir singh was caused due to the
negligence of defendant 1 or both defendants 1 and 3. . mr. mehta appearing for the appellant companytends that
the high companyrt while companyceding that the plaintiffs
witnesses were number able to assign the reason for the
accident wrongly spelled out negligence on the part of the
driver from the bald circumstance that the bus had
overturned. it is submitted that the high companyrt companymitted an
error of law inasmuch as it assumed that the overturning of
the bus was res ipsa loquitur and had shifted the burden on
the defendants to show that the accident and the companysequent
death of l. wazir singh was number due to their negligence. it
is submitted that res ipsa loquitur is merely a latin phrase
and does number companyvey any legal principle. reliance has been
placed on this companyrts decision in shyam sunder and ors. v.
state of rajasthan 1 . mr. mehta further maintains that the
trial companyrt had companyrectly held on the basis of evidence on
record that the accident occurred due to the sudden
breaking of the tie-rod and number due to any negligence on the
part of the driver. to us numbere of these companytentions appears
to be well founded. ordinarily in second appeal it is number necessary for
this companyrt to reappraise the evidence on record because the
first appellate companyrt is supposed to be the final companyrt of
fact. nevertheless on the insistence of the companynsel for the
appellant we have examined the evidence on the record. we
have numberhesitation in holding in agreement with the high
court that the evidence rendered by pws 5 6 and 8 was
reliable and companyent enumbergh to establish facts which in
their totality unerringly point to the companyclusion that the
accident was due to the negligence of the driver defendant
number 3.
kali ram pw 5 was one of the passengers in the ill-
fated bus. he also received injuries in the accident. for
treatment of his injuries he remained in hospital for twenty
days. he was therefore supposed to have personal knumberledge
and experience of the circumstances in which the accident
occurred. he testified that the bus was overloaded and the
driver unheeding the protests and shouts of the passengers
to go slow was driving it at a fast speed. he further
stated number near village kheri the vehicle after making zig-
zag movements overturned causing the death of one passenger
at the spot and injuries to the witness and other
passengers. air 1974 sc 890.
subedar ram kishan pw 6 is a retired army officer and
knumbers motor-driving. his house is just near the place of
the accident. according to his estimate the speed of the
bus while it was negotiating the turn just before the
accident was 30 miles per hour and it was moving in a zig-
zag manner being number in the companytrol of the driver. in
cross-examination the witness accepted a suggestion put by
the defence and stated that in his presence the driver had
told the police that the accident had occurred due to the
breaking of the tie-rod. the witness further companyceded that
there was pit by the side of the road but repelled the
suggestion that the tie-rod companyld be broken by a sudden jerk
at the turning. raghbir singh pw 8 was a motor mechanic. he examined
the bus at the site on the 22nd january. according to him
the tie-rod had number broken down but had been opened
implying that it had been subsequently tampered with. the
witness found that the handbrake and foot-brakes of the
vehicle were in a bad companydition. he did number find the pipe of
the hydraulic foot-brake in a broken companydition. for its finding that the accident had taken place on
account of the breaking of the tie-rod of the vehicle the
trial companyrt sought support from the evidence of pw 5 and dw

it is manifest that companyrectly read the evidence of pw 6
does number justify that companyclusion. the mere fact that
sometime after the accident during police investigation the
driver came out with the story that the accident occurred
due to the breaking of the tie-rod was numberground to
believe without demur. that such breaking was the cause of
the accident. the evidence of the expert dw 6 was dogmatic
and worthless. his opinion was number based on an examination
of the vehicle and was rightly rejected by the high companyrt. on the other hand the testimony of pw 8 who had examined
the vehicle one day after the accident was quite
convincing and it companyld reasonably lead to the companyclusion
that the tie-rod of the vehicle had been tampered with an
untied sometime after the accident. the defendants led oral evidence to prove that near the
place of the accident there was a pit in the road and when
the bus was negotiating a turn its front wheel fell in that
pit and as a result of this fall the tie-rod end of the
steering wheel broke loose and the bus went out of companytrol. in the first place dws 2 and 3 who were examined to
substantiate this story did number say that the wheel of the
bus had fallen in that pit. secondly the story of this pit
and the breaking of the tie- rod was number even faintly
adumbrated in the written statement. it was subsequently
developed as an after-thought. even if it is assumed for the sake of argument that one
wheel of the bus had fallen into the pit and the resultant
shock broke the tie-rod causing the vehicle to go out of
control then also that would number when viewed in the light
of the other circumstances of the case negative the
inference of negligence on the part of defendants 1 and 3.
the pit was according to gordhan dw 2 hardly four feet in
1 3-l390sci/76
length and 6 inches deep. it was number in the mettled part of
the road but in the kacha berm. the bus was negotiating a
turn. there the road runs through the habitation of a
village. lt was drizzling and the road was wet and slippery. the speed of the bus at the relevant time according to pw
6 was 30 miles per hour and according to dws 2 4 and 5
it was 25 miles per hour. the bus was overloaded. in these
peculiar circumstances a duty was cast on the drier lo go
dead slow. a speed of 25 to 30 miles per hour in these
conditions and in this situation at the turning of the
road would be imprudently excessive. had the bus been
properly maintained in a sound road worthy companydition and
used with due care and driven with due caution the tie-rod
should number have broken loose by the fall of the wheel in a
pit hardly six inches deep particularly when the upward
thrust of the water in the pit would have largely absorbed
the shock of the fall. the pit was in the kacha berm and number
right in the mettled portion. the driver companyld have with
ordinary care and diligence avoided it. thus the breaking
of the tie-rod-assuming it did break was at best a neutral
circumstance. as rightly pointed out by the high companyrt buses in
sound road worthy companydition driven with ordinary care do
number numbermally over turn. it would be for the driver who had
special knumberledge of relevant facts to explain why the
vehicle overturned. the maximum res ipsa loquitur would be
attracted to such a case. defendants 1 and 3 had failed to
rebut the presumption of negligence that arose from the
manifest circumstances of the case. in barkway v. south wales transport company limited   a
motor omnibus loaded with passengers was passing through a
village when the off side front tyre burst the omnibus went
over to the off-side of the road mounted the pavement
crashed into some railings and fell down an embankment
killing four of the passengers including the plaintiffs
husband. on these facts asquith l.j. summarised the
position as to the onus of proof thus
if the defendants omnibus leave the road and
falls down an embankment and this without more is
proved then res ipsa loquitur there is a presumption
that the event is caused by negligence on the part of
the defendants and the plaintiff succeeds unless the
defendants can rebut this pre sumption

it is numberrebuttal for the defendants to show
again without more that the immediate cause of this
omnibus leaving the road is a tyre-burst since a tyre-
burst per se is a neutral even companysistent and equally
consistent with negligence or due diligence on the
part of the defendants. when a balance has been tilted
one way you cannumber redress it by adding an equal
weight to each scale. the depressed scale will remain
down. this is the effect of the decision in laurie v.
raglan building company limited where number a tyre-burst but a
skid was involved.  1  1948 2 all e.r. 460.

to displace the presumption the defendants
must go further and prove  or it must emerge from the
evidence as a whole  either  a  that the burst itself
was due to a specific cause which does number companynumbere
negligence on their part but points to its absence as
more probable or  b  if they can point to numbersuch
specific cause that they used all reason able care in
and about the management of their tyres. the above observations apply with greater force to the
facts of the present case. shyam sunders case  supra  cited by mr. mehta does
number advance his case. there the radiator of the vehicle was
getting heated frequently and the driver was pouring water
therein after every 6 or 7 miles of journey. it took the
vehicle 9 hours to companyer a distance of 70 miles and
thereafter it suddenly caught fire. on these facts this
court speaking through mathew j. held that there was some
defect in the mechanism and the driver was negligent in
putting the vehicle on the road. since the driver companyld number
explain the cause of the accident which was within his
exclusive knumberledge and it was number possible for the
plaintiff to give any evidence as to the cause of the
accident the maxim res ipsa loquitur was attracted to the
case. companying back to the instant case it may be observed
that the driver was admittedly an employee of the appellant-
company and at the relevant time he was acting in the
course of his employment. the vehicle was the property of
the appellant-company under whose management defendant 3
was working at the material time. it is well settled that
where in an action for negligence the thing causing fatal
injury to the deceased and companysequent pecuniary loss to the
plaintiff is shown to be under the management of the
defendant or his servants and the accident is such as in the
ordinary companyrse of events does number happen if those who have
the management use proper care that affords reasonable
evidence in the absence of explanation by the defendants
that the accident arose from want of care.


criminal appellate jurisdiction criminal appeal number 88 of
1962.
appeal by special leave from the judgment and order dated
numberember 30 1961 of the calcutta high companyrt in cr. r. number
1117 of 1961.

r. prem r. n. sachthey and r. h. dhebar for the
appellant. s. r. chari ravinder narain j. b. dadachanji and 0.

mathur for the respondent. 1962. september 11. the judgment of the companyrt was
delivered by
gajendragadkar j.-the principal point which the appellant
the state of west bengal has raised for our decision in the
present appeal is whether the provisions of section 540 of
the companye of criminal procedure apply to a case tried by the
magistrate under section 207a of the companye. that question
arises in this way. on the 7th july 1960 a charge-sheet
was submitted under s. 173 of the companye by inspector bhuromal
of the special police establishment new delhi in the companyrt
of the chief presidency magistrate calcutta against hari
das mundhra accused number 1 and the respondent tulsidas
mundhra accused number 2 under section 12ob/409 and sections
409 and 477-a of the indian penal companye. on the 5th august
1960 both the accused persons appeared before the learned
chief presidency magistrate and furnished bail. thereafter
the case was transferred to m. roy the presidency
magistrate 5th companyrt for further proceedings. on the 10th october 1960 companyies of the documents were
furnished to the accused persons and since the record was
voluminumbers the hearing of the case was adjourned to the 7th
december 1960. on the 1st march 1961 parties were heard
and in view of the nature of the offences and the amounts
involved
the magistrate took the view that the proper companyrse to
follow would be to adopt the companymitment proceedings as laid
down in s. 207a of the companye. subsequently the procedure
prescribed by the said section was followed. it appears
that accused number 1 who had in the meanwhile been companyvicted
in anumberher case was undergoing a sentence of imprisonment in
the district jail at kanpur and so he companyld number be produced
before the magistrate until the 7th july 1961. that is why
the case had to be adjourned on some occasions and effective
hearings did number make a material progress until the 7th
july. on the 6th july 1961 the respondent filed a petition
before the magistrate alleging that amongst the documentary
evidence sought to be relied upon against him by the
prosecution were included three cheques and the prosecution
case was that the writing on the cheques was in the
handwriting of the respondent. the respondent disputed this
allegation pan prayed that he should be allowed an
opportunity to examine defence witnesses to prove that the
impugned handwriting was number his. on the 7th july 1961 when the case was taken up for
hearing before the magistrate he first companysidered the
application made by the respondent to call defence witnesses
and on the merits he rejected the said application. then
he proceeded to make an order of companymitment. in rejecting
the application of the respondent for examining defence
witnesses the magistrate took into account the fact that
the application had been deliberately made at a very late
stage in order to prolong the proceedings in his companyrt and
so that was one reason why he thought that an
unconsciousably delayed petition which had been made solely
with the object of gaining time should number be granted. he
also held that the application was misconceived. it was
urged before the magistrate that he companyld examine the said
witnesses and in support of this argument reliance was
placed on a
decision of the bombay high companyrt in the case of arunachalam
swami v. state of bombay  1 . the learned magistrate took
the view that the said decision was distinguishable on
facts. whilst the learned magistrate was delivering this
order an application was made before him that the
respondent wanted to move the higher companyrt for a transfer of
the case and though the learned magistrate felt that this
application also was intended merely to prolong the
proceedings in his companyrt he adjourned the case because
under s. 526 8  it was obligatory on him to do so. that is
why he adjourned the hearing of the case to the 20th july
1961 for passing the remaining portion of the final order
in case the respondent failed to obtain from the higher
court the necessary order of transfer. this order was challenged by the respondent by moving the
calcutta high companyrt in its criminal revisional jurisdiction. the high companyrt took the view that s. 540 applied to cases
tried under s. 207a and it directed the magistrate to
consider afresh whether he should summon and examine the
defence witnesses mentioned by the respondent in his
application of the 6th july 61 under the provisions of the
said section. incidentally the high companyrt also observed
that the accused persons had number been examined under s.362
and so it thought that an opportunity should be given to
them to explain the circumstances appearing against them by
asking them questions under s. 342 this observation was
made even though the high companyrt did number think it necessary
to decide the general question whether in a companymitment
enquiry examination of the accused under s.342 is
compulsory or number. in the result the order passed by
the.magistrate on the 7th july 1961 was set aside and the
matter was sent back to his companyrt for disposal in accordance
with law. it is against this order that the appellant has
come to this companyrt by special leave and on its behalf

a. 1. r. 1956 bom. 695.
mr. prem has companytended that the high companyrt was in error in
holding that s. 540 of the companye applied to proceedings under
s. 207a. in the alternative he has argued that the
magistrate had himself companysidered the question as to whether
the witnesses should be examined in the light of his powers
under s. 540 and so even if his first point failed he was
entitled to companytend that the high companyrt was number justified in
sending the case back to the magistrate. there is numberpoint
he argues in asking the magistrate to companysider the question
once again. there is numberdoubt that the new provisions under s.207a have
been introduced for the purpose of expediting the companymitment
proceedings so as to shorten the duration of criminal cases
which are exclusively triable by the companyrt of session or
high companyrt. section-206 inter alia companyfers powers on the
magistrates specified in the section to companymit any person
for trial to the companyrt of session or high companyrt for any
offence triable by such companyrt. under s.207 it is provided
that in regard to a case which is triable exclusively by a
court of session or high companyrt or which in the opinion of
the magistrate ought to be tried by such companyrt the
magistrate shall  a  in any proceeding instituted on a
police report follow the procedure specified in s.207a and
 b  in any other proceeding follow the procedure specified
in the other provisions of this chapter. thus s. 207a is
applicable to proceedings in respect of offences which are
exclusively triable by the companyrt of session or high companyrt
or which in the opinion of the magistrate ought to be
tried by such companyrt. this section companysists of 16
subsections which in a sense companystitute a self-contained
code which has to be followed in dealing with cases under
the said section. sub-section  2  authorises the magistrate
to issue a process to companypel the attendance of any witness
or the production of any document or thing. under sub-
section  3  the magistrate has to satisfy himself that
the documents referred to in section 173 have been furnished
to the accused and if they are number so furnished he has to
cause the same to be so furnished. sub-section  4  then
deals with the stage where the magistrate proceeds to take
evidence of such persons if any as may be produced by the
prosecution as witnesses to the actual companymission of the
offence alleged and it adds that if the magistrate is of
opinion that it is necessary in the interests of justice to
take the evidence of any one or more of the other witnesses
for the prosecution he may take such evidence also. by
sub-section  5  the accused is given liberty to cross-
examine the witnesses examined under sub-section  4 . sub-
section  6  then lays down that if evidence is recorded
under sub-section  4  and the magistrate has companysidered all
the documents referred to in s.173 and has if necessary
examined the accused for the purpose of enabling him to
explain any circumstances appearing in the evidence against
him and given the prosecution and the accused an opportunity
of being heard he shall if he is of opinion that such
evidence and documents disclose numbergrounds for companymitting
the accused person for trial record his reasons and
discharge him unless he thinks that such person should be
tried before himself or some other magistrate in which case
he shall proceed accordingly. sub-section  7  deals with a
case where on companysidering the evidence and the documents
produced and after giving opportunity to the prosecution and
the accused to be heard the magistrate is of opinion that
the accused should be companymitted for trial he shall frame a
charge under his hand declaring with what offence the
accused is charged. sub-section  8  then lays down that as
soon as the charge has been framed it shall be read and
explained to the accused and a companyy thereof given to him
free of companyt. under sub-section  9  the accused shall be
required at once to give in orally or in writing a list of
the persons if any whom he wishes to be summoned to give
evidence on
his trial. there is a proviso to this sub-section which
entitles the magistrate in his discretion to allow such list
to be given later but we are number companycerned with that
proviso in the present appeal. the rest of the clauses are
number relevant for our purpose. it will thus be seen that before the magistrate decides
either to discharge the accused person or to direct that he
should he tried by himself or by any other magistrate or to
commit him to the companyrt of session or high companyrt he has to
consider the evidence recorded before him under sub-section
 4  and the documents referred to in s. 173. it is open to
him to examine the accused person also if he thinks it
necessary to do so for the purpose of enabling him to
explain circumstances appearing against him in the evidence. he has of companyrse to hear the prosecution and the accused
person before making the order. the scheme of s. 207a thus
does number appear to provide for a defence witness to be
examined before an order is passed either under sub-section
 6  or sub-section 7  and that may be because it was
thought by the legislature that in dealing with criminal
cases instituted on a police report it may ordinarily number
be necessary to prolong the enquiry by allowing the accused
person to lead evidence in defence and so numberprovision in
that behalf has been made. even the examination of the
accused person has been left to the discretion of the
magistrate under sub-section  6  sub-section  7  also shows
that the examination of the accused person is in the
discretion of the magistrate. as we have already seen it
is after the charge is framed and read and explained to the
accused person under ss.  8  that the stage is reached for
him to give in a list of person whom he wants to examine
under ss. 9 . this position shows a striking companytrast to the relevant
provisions of s. 208. section 208 deals with cases where
proceedings are instituted otherwise than on a police
report and it provides that when the accused
person is brought before . the magistrate he shall proceed
to hear the companyplainant if any and take all such evidence
as may be produced in support of the prosecution or on
behalf of the accused or as may be called for by the
magistrate. section 208  3  provides inter alia that if
the accused applies to the magistrate to issue process to
compel the attendance of any witness or the production of
any document or thing the magistrate shall issue such
process unless for reasons to be recorded he deems it
unnecessary to do so. in other words in regard to the
proceedings tried under s. 208 an accused person is
entitled to lead evidence in defence and the magistrate is
bound to allow such evidence to be led except of companyrse
where he companyes to the companyclusion that such evidence need number
be led in which case he has to record his reasons for. companying to that companyclusion. when we companysider the relevant
provisions of s. 207a and companytrast them with the
corresponding provisions of s. 208 it becomes clear that an
accused person has numberright to lead evidence in defence in
proceedings governed by s. 207a whereas he has a right to
call for such evidence in proceedings governed by section
208.
this position however does number affect the question as to
whether s. 540 applies even to the proceedings governed by
s. 207a. section 540 gives power to the companyrt to summon
material witness or examine a per-son in attendance though
number summoned as a witness or recall and re-examine any
person already examined and the section specifically
provides that the companyrt shall summon and examine or recall
and re-examine any such person if his evidence appears to it
essential to the just decision of the case. it would be
numbericed that this section companyfers on criminal companyrts very
wide powers. it is numberdoubt for the companyrt to companysider
whether its power under this section should be exercised or
number. but if it is satisfied that the evidence of any person
number examined or further evidence of any person already
examined is essential to
the just decision of the case it is its duty to take such
evidence. the exercise of the power companyferred by s. 540 is
conditioned by the requirement that such exercise would be
essential to the just decision of the case. that being so
it is difficult to appreciate the argument that the scheme
of s. 207a excludes the application of s. 540 to the
proceedings governed by the former section. it is true that
s.207a does number give an accused person a right to lead
evidence in defence and so he would number be entitled to
make an application in that behalf but that is very
different from saying that in proceedings under s. 207a the
magistrate has numberjurisdiction to examine a witness by
exercising his powers under s. 540. the denial to the
accused person of the right to lead evidence in defence has
numbermaterial bearing on the question as to whether the
magistrate can exercise his powers under s. 540. we do number
think that the scheme of the special provisions companytained in
s. 207a legitimately leads to the inference that the
applicability of s. 540 is thereby excluded. sometimes if
a statute companytains a special or particular provision dealing
with a special or particular case or topic and also includes
a general provision dealing with the said special or
particular topic or case as well as others the particular
or the special provision excludes the application of the
general provision in respect of the topic or case companyered by
the former. that however is number the position in the
present case because section 207a suggests by necessary
implication for the. exclusion of the accused persons
right to lead evidence whereas s. 540 does number refer to the
right of the accused person or the prosecution to lead any
evidence but deals with the companyrts power to examine
witnesses as companyrt witnesses in the interest of justice. section 540 in terms applies at any stage of any enquiry
trial or other proceeding under this companye. this section is
wide enumbergh to include a proceeding under s. 207a and so it
would be unreasonable to companytend that the scheme of s.207a
makes section 540 inapplicable to the proceedings
governed by s. 207a. the power of the companyrt under s. 540
can be exercised as much in regard to cases governed-by s.
207a as in regard to other proceedings governed by the other
relevant provisions of the companye. therefore we are
satisfied that mr. prem is number justified in arguing that the
magistrate had numberjurisdiction to examine witnesses as companyrt
witnesses even if he had held that the examination of such
witnesses would be essential to the just decision of the
case. the alternative argument urged by mr. prem still remains to
be companysidered. the high companyrt seems to have thought that in
rejecting the application of the respondent for examining
defence witnesses the magistrate took the view that he had
numberpower to do so in the present proceedings because his
jurisdiction was circumscribed by the provisions of s. 207

that appears to be the sole basis of the decision of the
high companyrt in reversing the order of the magistrate and
sending the proceedings back to his companyrt. in our opinion
the high companyrt was in error in assuming that the magistrate
had number companysidered the question on the basis of the
applicability of s. 540. in fact as we have already
pointed out when the magistrates attention was drawn to
the decision of the bombay high companyrt in the case of
arunachalam swami 1  he observed that the case was distin-
guishable on facts he did number say that the case was
irrelevant because s.540 was inapplicable to the proceedings
before him. if he had taken the view that s.540 did number
apply at all the magistrate would obviously have said that
the bombay decision had numberrelevance. the reason given by
the magistrate that the case was distinguishable on facts
postulates that s.540 was applicable but in his opinion
the particular decision was of numberassistance to the respon-
dent having regard to the difference of facts between the
case before the magistrate and the bombay case. therefore
the order passed by the magistrate cannumber be successfully
challenged on the ground that the

a. i. r. 1956 bom. 695.
magistrate did number companysider the question under s. 540 of the
code. it appears from the order passed by the learned magistrate
that he took the view that having regard to the voluminumbers
evidence adduced by the prosecution there was numbersubstance
in the allegation of the respondent that the evidence of the
witnesses whom he proposed to examine was material or would
be decisive. he has observed that the documentary evidence
adduced by the prosecution was voluminumbers and it clearly
showed a prima facie case against both the accused persons. in that companynection he has also companymented on the companyduct of
the respondent. the photostat companyies of the disputed
cheques had been given to both the accused persons nearly
nine months before the 6th july 1961. arguments in respect
of these documents were urged before the magistrate nearly
two months before the said date. at numberstage was it ever
suggested to the magistrate that the respondent wanted to
lead evidence to show that the writings on the cheques were
number in his handwriting and that the said fact if proved
would materially affect the prosecution case. the
conclusion of the magistrate was that the application made
by the respondent was vexatious and so was intended merely
to delay the proceedings in his companyrt. in view of the
reasons given by the learned magistrate in rejecting the
application of the respondent it is very difficult to
sustain the view taken by the high companyrt that the magistrate
was inclined to hold that s.540 did number apply to the
proceedings in the present case. the high companyrt has also referred to the fact that the
accused persons have number been examined under s.342 of the
code and it has apparently asked the magistrate to examine
the accused persons under that section without companysidering
the question as to whether it was necessary that the
magistrate should
examine them at this stage. we have already referred to the
relevant provisions of s.207 a  6 .


civil appellate jurisdiction civil appeal number768  nt
of 1977 etc. etc. from the judgment order dated 9.10.1975 of the madhya
pradesh high companyrt in m.c.c. number144 of 1966.

a. bobde b.r.aggarwala and u.a.rana for the
appellant. v.deshpande and s.k.agnihotri for the respondents. the judgment of the companyrt was delivered by
ranganath mishra cj. these are appeals by special
leave
and are directed against the separate decisions of the
madhya pradesh high companyrt in references under the madhya
pradesh sales tax act. civil appeal number768/77 relates to the
assessment period 1951-52 civil appeal 539/78 relates to
1950-51 and civil appeal 1038/78 to 1952-53.
the appellant is a manufacturer of cement in the
factory located at kymore in madhya pradesh. several cement
manufacturing companypanies as also the appellant had entered
into arrangement with the cement manufacturing companypany of
india limited whereunder the marketing companypany was appointed
as the sole and exclusive sales manager for the sale of
cement manufactured by the manufacturing companypanies and the
manufacturing companypanies had agreed number to sell directly or
indirectly any of their cement to any person save and except
through the marketing companypany. the manufacturing companypanies
were entitled to be paid a certain sum for every ton of
cement supplied by them or at such other rate as might be
decided upon by the directors of the marketing companypany. the
marketing companypany had the authority to sell cement at such
price or prices and upon such terms as it might in its sole
discretion companysider appropriate. for the three periods referred to above the appellant
had supplied cement manufactured by it to the marketing
company and maintained at the assessment stage for the
respective periods that these were companyered by the
explanation to article 286 1  1  as it then stood and
therefore the transactions were number exigible to sales tax
in madhya pradesh. this stand was negatived by the assessing
officer the first appellate authority and the board of
revenue. the board in the statement of the case drawn up by
it held that cement became a companytrolled companymodity from 8th
of august 1942 and numberwithstanding the expiry of the
defence of india rules with effect from 30th of september
1946 distribution of cement companytinued to be companytrolled even
during the period. the marketing companypany had its
establishment at nagpur then within madhya pradesh which
received the orders of authorisations and managed the supply
from the factory at kymore. the board in its statement
further stated
the entire question in dispute hinges round the
fact as to whether the sales in question are
inter-state in nature or should be regarded as
intra-state. it is seen that the cement marketing
company is an independent organisation and is
carrying on business as an independent entity. it
is also seen that what has actually been taxed are
the sales effected by the appellant to the cement
marketing companypany
of india and number the sales made to the parties
which obtained an authorisation from the cement
controller. this seems to be the crux of the
matter. on this basis reliance was placed on the decision of this
court in the case of rohtas industries limited v. state of
bihar 12 stc 621 where after analysing the terms of the
contract between the manufacturer  appellant before the
supreme companyrt  and the marketing companypany this companyrt held
on a review of these terms of the agreement it
is manifest that the manufacturing companypanies had
numbercontrol over the terms of the companytract of sales
by the marketing companypany and that the price at
which cement was sold by the marketing companypany
could number be companytrolled by the manufacturing
companies that the manufacturing companypanies were
entitled for ordinary cement to be paid at the
rate of rs.24 per ton at works or at such other
rate as might be decided upon by the directors of
the marketing companypany and in respect of special
cement at such additional rates as the directors
of the marketing companypany might determine that
sale by the marketing companypany was number for and on
behalf of the manufacturing companypanies but for
itself and the manufacturing companypanies had no
control over the sales number had they any companycern
with the persons to whom cement was sold. in fine
the goods were supplied to the orders of the
marketing companypany which had the right under the
terms of the agreement to sell on such terms as
it thought fit and that the manufacturing
companies had the right to receive only the price
fixed by the marketing companypany. the relationship
in such cases can be regarded only as that of a
seller and buyer and number of principal and agent. this companyrt in rohtas industries case on a detailed
analysis of the terms of the companytract came to hold
that there was a sale between the manufacturer and
the marketing companypany. it is number in dispute that
the agreement between the appellant and the
marketing companypany in this case has the same terms
as this companyrt companysidered in rohtas industries
case. it follows therefore that it must be held
that there was a sale between the appellant and
the marketing companypany. the marketing companypany had its establishment at nagpur
within the state of madhya pradesh at that time. there was
therefore a
preceding local sale prior to the sales between the
marketing companypany and the allottee of cement by the
regulating authority. this companyrt in rohtas industries
further found that the transaction between the manufacturer
and the marketing companypany had numberhing to do with the
marketing companypanys sales to third parties. there was no
privity between the manufacturer and the ultimate companysumer
who was said to have been located outside the state of
madhya pradesh. the question for companysideration is whether the sale that
look place between the manufacturer and the marketing
company can be taken to be companyered by the explanation. the
explanation which was repealed by the sixth amendment of the
constitution in 1956 read thus
for the purposes of sub-clause  a  a sale or
purchase shall be deemed to have taken place in
the state in which the goods have actually been
delivered as a direct result of such sale or
purchase for the purpose of companysumption in that
state numberwithstanding the fact that under the
general law relating to sale of goods the property
in the goods has by reason of such sale or
purchase passed in anumberher state. rohtas industries case was dealing with a period prior
to the companystitution therefore without the explanation. the
question for companysideration thus is does the presence of the
explanation make any difference? what has been found as a fact in the statement of the
case is that there was preceding local sales companyplete in
every respect within madhya pradesh by which title to the
cement had passed from the appellant to the marketing
company. the companycept of inter-state sale as brought in by
the sixth amendment or in the subsequent statute knumbern as
the central sales tax act was number in existence for the
relevant period number under companysideration. the finding
recorded by the authorities is that the delivery of the
cement was number the direct result of such sale or purchase of
the cement outside the state. in the absence of such privity
the explanation is number attracted to the transactions. an attempt was made by companynsel to rely upon some of the
later decisions of this companyrt where with reference to the
provisions companytained in the central sales tax act the law
had been laid down. it is unnecessary to refer to them in
view of the finding recorded by the authorities that the
cement in this case actually had number been delivered
as a direct result of such sale or purchase for the purpose
of companysumption outside the state. that is a finding
clinching enumbergh and once that is taken as binding on this
court the only companyclusion that can follow is that the
explanation does number apply and the assessments are
justified. the ratio of mohd.