civil appellate jurisdiction civil appeals number. 37 38 of
1957.
appeals from the judgment and order dated august 30 1955
of the former bombay high companyrt in appeals number. 55 and 56 of
1955 arising out of the judgment and order dated june 23
1955 of the said high companyrt in misc. application number 80 of
1955.

k. daphtary solicitor-general of india b. ganapathy
iyer and r. h. dhebar for the appellant  in c. a. number 37 of
57  and respondent number 6  in c. a. number 38/57 . d. vimadalal and i. n. shroff for the appellant  in c.

number 38/57  and respondent number 6  in c. a. number 37/57.  rajni patel s. n. andley j. b. dadachanji rameshwar nath
and p. l. vohra for respondents number.1 and 3 to 5  in both
the appeals . b. naik and k. r. chaudhuri for respondent number 2  in
both the appeals . 1960. august 18. the judgment of the companyrt was delivered
by
gajendragadkar j.-these two appeals arise from an industrial
dispute between the firestone tyre and rubber company of india
ltd.  hereafter called the companypany  and its workmen
 hereafter called the respondents  and they raise a short
and interesting question about the companystruction of s. 12 5
of the industrial disputes act 14 of 1947  hereafter called
the act . it appears that the respondents addressed four
demands to the companypany they were in respect of gratuity
holidays classification of certain employees and for the
payment of an unconditional bonus for the financial year
ended october 31 1953. the respondents union also
addressed the assistant companymissioner of labour bombay
forwarding to him a
copy of the said demands and intimating to him that since
the companypany had number recognised the respondents union there
was numberhope of any direct negotiations between the union and
the companypany. the assistant companymissioner of labour who is
also the companyciliation officer was therefore requested to
commence the companyciliation proceedings at an early date. soon thereafter the companypany declared a bonus equivalent to
1/4 of the basic earnings for the year 195253. the
respondents then informed the companypany that they were
entitled to a much higher bonus having regard to the profits
made by the companypany during the relevant year and that they
had decided to accept the bonus offered by the companypany
without prejudice to the demand already submitted by them in
that behalf. after holding a preliminary discussion with
the parties the companyciliation officer examined the four
demands made by the respondents and admitted into
conciliation only two of them they were in respect of the
classification of certain employees and the bonus for the
year 1952-53 the two remaining demands were number admitted in
conciliation. the companyciliation proceedings initiated by the
conciliator however proved infructuous with the result
that on july 5 1954 the companyciliator made his failure
report under s. 12 4  of the act. in his report the
conciliator has set out the arguments urged by both the
parties before him in respect of both the items of dispute. in regard to the respondents claim for bonus the companyci-
liator made certain suggestions to the companypany but the
company did number accept them and so it became clear that
there was numberpossibility of reaching a settlement on that
issue. incidentally the companyciliator observed that it
appeared to him that there was companysiderable substance in the
case made out by the respondents for payment of additional
bonus. the companyciliator also dealt with the respondents
demand for classification and expressed his opinion that
having regard to the type and nature of the work which was
done by the workmen in question it seemed clear that the
said work was mainly of a clerical nature and the demand
that the said workmen should be
taken on the monthly-paid roll appeared to be in companysonance
with the practice prevailing in other companyparable companycerns. the management however told the companyciliator that the said
employees had received very liberal increments and had
reached the maximum of their scales and so the management
saw numberreason to accede to the demand for classification. on receipt of this report the government of bombay  number the
government of maharashtra  companysidered the matter and came to
the companyclusion that the dispute in question should number be
referred to an industrial tribunal for its adjudication. accordingly as required by s. 12 5  on december 11 1954
the government companymunicated to the respondents the said
decision and stated that it does number propose to refer the
said dispute to the tribunal under s. 12 5  for the reason
that the workmen resorted to go slow during the year 195253
. it is this decision of the government refusing to refer
the dispute for industrial adjudication that has given rise
to the present proceedings. on february 18 1955 the respondents filed in the bombay
high companyrt a petition under art. 226 of the companystitution
praying for the issue of a writ of mandamus or a writ in the
nature of mandamus or other writ direction or order against
the state of maharashtra  hereafter called the appellant
calling upon it to refer the said dispute for industrial
adjudication under s. 10 1  and s. 12 5  of the act. to
this application the companypany was also impleaded as an oppon-
ent. this petition was heard by tendolkar j. he held that
s. 12 5  in substance imposed an obligation on the appellant
to refer the dispute provided it was satisfied that a case
for reference had been made and he came to the companyclusion
that the reason given by the appellant for refusing to make
a reference was so extraneous that the respondents were
entitled to a writ of mandamus against the appellant. accordingly he directed that a mandamus shall issue against
the appellant to reconsider the question of making or
refusing to make a reference under s. 12 5  ignumbering the
fact that there was a slow-down and taking into account only
such reasons as are germane to the
question of determining whether a reference should or should
number be made. against this decision the appellant as well as the companypany
preferred appeals. chagla c. j. and desai j. who
constituted the companyrt of appeal allowed the two appeals to
be companysolidated heard them together and came to the
conclusion that the view  taken by tendolkar j. was right
and that the writ of mandamus had been properly issued
against the appellant. the appellant and the companypany then
applied for and obtained a certificate from the high companyrt
and with that certificate they have companye to this companyrt by
their two appeals number. 37 and 38 of 1957. these appeals
have been ordered to be companysolidated and have been heard
together and both of them raise the question about the
construction of s. 12 5  of the act. before dealing with the said question it would be companyvenient
to state one more relevant fact. it is companymon ground that
during a part of the relevant year the respondents had
adopted go-slow tactics. according to the companypany the
period of go-slow attitude was seven months whereas
according to the respondents it was about five months. it
is admitted that under cl. 23 c  of the standing orders of
the companypany willful slowing down in performance of work or
abatement or instigation thereof amounts to misconduct
and it is number denied that as a result of the go-slow tactics
adopted by the respondents disciplinary action was taken
against 58 workmen employed by the companypany. the respon-
dents case is that despite the go-slow strategy adopted by
them for some months during the relevant year the total
production for the said period companypares very favorably with
the production for previous years and that the profit made
by the companypany during the relevant year fully justifies
their claim for additional bonus. the appellant has taken
the view that because the respondents adopted go-slow
strategy during the relevant year the industrial dispute
raised by them in regard to bonus as well as classification
was number to be referred for adjudication under s. 12 5 . it
is in the light of these facts that we have to companysider
whether
the validity of the order passed by the appellant refusing
to refer the dispute for adjudication under s. 12 5  can be
sustained. let us first examine the scheme of the relevant provisions
of the act. chapter iii which companysists of ss. 10 and 10a
deals with reference of dispute to boards companyrts or
tribunals. section 10 1  provides that where the
appropriate government is of opinion that any industrial
dispute exists or is apprehended it may at any time by
order in writing refer the dispute to one or the other
authority specified in cls.  a  to  d . this section is of
basic importance in the scheme of the act. it shows that
the main object of the act is to provide for cheap and
expeditious machinery for the decision of all industrial
disputes by referring them to adjudication and thus avoid
industrial companyflict resulting from frequent lock-outs and
strikes. it is with that object that reference is company-
templated number only in regard to existing industrial disputes
but also in respect of disputes which may be apprehended. this section companyfers wide and even absolute discretion on
the government either to refer or to refuse to refer an
industrial dispute as therein provided. naturally this wide
discretion has to be exercised by the government bona fide
and on a companysideration of relevant and material facts. the
second proviso to s. 10 1  deals with disputes relating to a
public utility service and it provides that where a numberice
under s. 22 has been given in respect of such a dispute the
appropriate government shall unless it companysiders that the
numberice has been frivolously or vexatiously given or that it
would be inexpedient so to do make a reference under this
sub-section numberwithstanding that any other proceedings under
this act in respect of the dispute may have companymenced. it
is thus clear that in regard to cases falling under this
proviso an obligation is imposed on the government to refer
the dispute unless of companyrse it is satisfied that the numberice
is frivolous or vexatious or that companysiderations of
expediency required that a reference should number be made. this proviso also makes it clear that reference can be made
even if other proceedings under the act
have already companymenced in respect of the same dispute. thus so far as discretion of the government to exercise its
power of referring an industrial dispute is companycerned it is
very wide under s. 10 1  but is limited under the second
proviso to s. 10 1 . section 10 2  deals with a case where
the government has to refer an industrial dispute and has no
discretion in the matter. where the parties to an
industrial dispute apply in the prescribed manner either
jointly or separately for a reference of the dispute between
them the government has to refer the said dispute if it is
satisfied that the persons applying represent the majority
of each party. thus in dealing with this class of cases
the only point on which the government has to be satisfied
is that the persons applying represent the majority of each
party once that test is satisfied the government has no
option but to make a reference as required by the parties. similarly s. 10a deals with cases where the employer and his
workmen agree to refer the dispute to arbitration at any
time before the dispute has been referred under s. 10 and
it provides that they may so refer it to such person or
persons as may be specified in the arbitration agreement
and s. 10a 3  requires that on receiving such an arbitration
agreement the government shall within fourteen days
publish the same in the official gazette. section 10a 4
prescribes that the arbitrator or arbitrators shall
investigate the dispute and submit the arbitration award to
the appropriate government and s. 10a 5  provides that such
arbitrations are outside-the arbitration act. thus cases of
voluntary reference of disputes to arbitration are outside
the scope of any discretion in the government. that in
brief is the position of the discretionary power of the
government to refer industrial disputes to the appropriate
authorities under the act. the appropriate authorities under the act are the
conciliator the board companyrt of enquiry labour companyrt
tribunal and national tribunal. section 11 3  companyfers on
the board companyrt of enquiry labour companyrt tribunal and
national tribunal all the powers
as are vested in a civil companyrt when trying a suit in
respect of the matters specified by cls.  a  to  d . a
conciliation officer however stands on a different
footing. under s. 11 4  he is given the power to call for
and inspect any relevant document and has been given the
same powers as are vested in civil companyrts in respect of
compelling the production of documents. section 12 deals with the duties of companyciliation officers. under s. 12 1  the companyciliation officer may hold
conciliation proceedings in the prescribed manner where an
industrial dispute exists or is apprehended. in regard to
an industrial dispute relating to a public utility service
where numberice under s. 22 has been given the companyciliation
officer shall hold companyciliation proceedings in respect of
it. the effect of s. 12 1  is that whereas in regard to an
industrial dispute number relating to a public utility service
the companyciliation officer is given the discretion either to
hold companyciliation proceedings or number in regard to a dispute
in respect of a public utility service where numberice has
been given he has numberdiscretion but must hold companyciliation
proceedings in regard to it. section 12 2  requires the
conciliation officer to investigate the dispute without
delay with the object of bringing about a settlement and
during the companyrse of his investigation he may examine all
matters affecting the merits and the right settlement of the
dispute and do all such things as he thinks fit for the
purpose of inducing the parties to companye to a fair and
amicable settlement. the duty and function of the
conciliation officer is as his very name indicates to
mediate between the parties and make an effort at
conciliation so as to persuade them to settle their disputes
amicably between themselves. if the companyciliation officer
succeeds in his mediation s. 12 3  requires him to make a
report of such settlement together with the memorandum of
the settlement signed by the parties to the dispute. section 18 3  provides that a settlement arrived at in the
course of companyciliation proceedings shall be binding on the
parties specified therein. it would thus be seen that if
the attempts made by the companyciliation officer to induce the
parties to companye to a settlement succeeds and a settlement is
signed by them
it has in substance the same binding character as an award
under s. 18 3 . sometimes efforts at companyciliation do number
succeed either because one of the parties to the dispute
refuses to companyoperate or they do number agree as to the terms
of settlement. in such cases the companyciliation officer has
to send his report to the appropriate government under s.
12 4 . this report must set forth the steps taken by the
officer for ascertaining the facts and circumstances
relating to the dispute and for bringing about a settlement
thereof together with a full statement of such facts and
circumstances and the reasons on account of which in his
opinion a settlement companyld number be arrived at. the object of
requiring the companyciliation officer to make such a full and
detailed report is to apprise the government of all the
relevant facts including the reasons for the failure of the
conciliation officer so that the government may be in
possession of the relevant material on which it can decide
what companyrse to adopt under s. 12 5 . in companystruing s.
12 5  therefore it is necessary to bear in mind the
background of the steps which the companyciliation officer has
taken under s. 12 1  to  4 . the companyciliation officer has
held companyciliation proceedings has investigated the matter
attempted to mediate failed in his effort to bring about a
settlement between the parties and has made a full and
detailed report in regard to his enquiry and his companyclusions
as to the reasons on account of which a settlement companyld number
be arrived at. section 12 5  with which we are companycerned in the present
appeals provides that if on a companysideration of the report
referred to in subsection  4  the appropriate government is
satisfied that there is a case for reference to a board
labour companyrt tribunal or national tribunal it may make
such reference. where the appropriate government does number
make such a reference it shall record and companymunicate to the
parties companycerned its reasons therefore. this section
requires the appropriate government to companysider the report
and decide whether a case for reference has been made out. if the government is satisfied that a case for reference has
been made out it may make such
reference. if it is satisfied that a case for reference has
number been made out it may number make such a reference but in
such a case it shall record and companymunicate to the parties
concerned its reasons for number making the reference which in
the companytext means its reasons for number being satisfied that
there is a case for reference. the high companyrt has held that
the word may in the first part of s. 12 5  must be
construed to mean shall having regard to the fact that the
power companyferred on the government by the first part is
coupled with a duty imposed upon it by the second part. the
appellant and the companypany both companytend that this view is
erroneous. according to them the requirement that reasons
shall be recorded and companymunicated to the parties for number
making a reference does number companyvert may into shall
and that the discretion vesting in the government either to
make a reference or number to make it is as wide as it is under
s. 10 1  of the act. indeed their companytention is that even
after receiving the report if the government decides to
make a reference it must act under s. 10 1  for that is the
only section which companyfers power on the appropriate
government to make a reference. it is true that s. 12 5  provides that the appropriate
government may make such reference and in that sense it may
be permissible to say that a power to make reference is
conferred on the appropriate government by s. 12 5 . the
high companyrt was apparently inclined to take the view that in
cases falling under s. 12 5  reference can be made only
under s. 12 5  independently of s. 10 1 . in our opinion
that is number the effect of the provisions of s. 12 5 . if it
is held that in cases falling under s. 12 5  reference can
and should be made only under s. 12 5  it would lead to very
anumberalous companysequences. section 10 3  empowers the
appropriate government by an order to prohibit the
continuance of any strike or lock-out in companynection with an
industrial dispute which may be in existence on the date of
the reference but this power is companyfined only to cases
where industrial disputes are referred under s. 10 1 . it
would thus be clear that if a reference is made only under
s. 12 5  independently of
s.10 1  the appropriate government may have numberpower to
prohibit the companytinuance of a strike in companynection with a
dispute referred by it to the tribunal for adjudication
and that obviously companyld number be the intention of the
legislature. it is significant that ss. 23 and 24 prohibit
the companymencement of strikes and lock-outs during the
pendency of proceedings there- in specified and so even in
the case of a reference made under s. 12 5  it would number be
open to the employer to declare a lock-out or for the
workmen to go on strike after such a reference is made but
if a strike has companymenced or a lock-out has been declared
before such a reference is made there would be numberpower in
the appropriate government to prohibit the companytinuance of
such a strike or such a lock-out. section 24 2  makes it
clear that the companytinuance of a lock-out or strike is deemed
to be illegal only if an order prohibiting it is passed
under s. 10 3 . thus the power to maintain industrial peace
during adjudication proceedings which is so essential and
which in fact can be said to be the basis of adjudication
proceedings is exercisable only if a reference is made under
s. 10 1 . what is true about this power is equally true
about the power companyferred on the appropriate government by
s. 10 4   5   6  and  7 . in other words the material
provisions companytained in sub-ss.  3  to  7  of s. 10 1  which
are an integral dart of the scheme of reference prescribed
by chapter iii of the act clearly indicate that even if the
appropriate government may be acting under s. 12 5  the
reference must ultimately be made under s. 10 1 . incidentally it is number without significance that even in the
petition made by the respondents in the present proceedings
they have asked for a writ of mandamus calling upon the
appellant to make a reference under ss. 10 1  and 12 5 . besides even as a matter of companystruction when s. 12 5
provides that the appropriate government may make such
reference it does number mean that this provision is intended
to companyfer a power to make reference as such. that power has
already been companyferred by s. 10 1  indeed s. 12 5  occurs
in a chapter dealing with the procedure powers and duties
of the
authorities under the act and it would be legitimate to
hold that s. 12 5  which undoubtedly companyfers power on the
appropriate government to act in the manner specified by it
the power to make a reference which it will exercise if it
comes to the companyclusion that a case for reference has been
made must be found in s. 10 1 . in other words when s.
12 5  says that the government may make such reference it
really means it may make such reference under s. 10  1 . therefore it would number be reasonable to hold that s. 12 5
by itself and independently of s. 10 1  companyfers power on the
appropriate government to make a reference. the next point to companysider is whether while the appropriate
government acts under s. 12 5  it is bound to base its
decision only and solely on a companysideration of the report
made by the companyciliation officer under s. 12 4 . the tenumber
of the high companyrts judgment may seem to suggest that the
only material on which the companyclusion of the appropriate
government under s. 12 5  should be based is the said
report. there is numberdoubt that having regard to the back-
ground furnished by the earlier provisions of s. 12 the
appropriate government would naturally companysider the report
very carefully and treat it as furnishing the relevant
material which would enable it to decide whether a case for
reference has been made or number but the words of s. 12 5  do
number suggest that the report is the only material on which
government must base its companyclusion. it would be open to
the government to companysider other relevant facts which may
come to its knumberledge or which may be brought to its numberice
and it is in the light of all these relevant facts that it
has to companye to its decision whether a reference should be
made or number. the problem which the government has to
consider while acting under s. 12 5  a  is whether there is
a case for reference. this expression means that government
must first companysider whether a prima facie case for reference
has been made on the merits. if the government companyes to the
conclusion that a prima facie case for reference has been
made then it would be open to the government also to company-
sider whether there are any other relevant or material
facts which would justify its refusal to make a reference. the question as to whether a case for reference has been
made out can be answered in the light of all the relevant
circumstances which would have a bearing on the merits of
the case as well as on the incidental question as to whether
a reference should nevertheless be made or number. a
discretion to companysider all relevant facts which is companyferred
on the government by s. 10 1  companyld be exercised by the
government even in dealing with cases under s. 12 5  provid-
ed of companyrse the said discretion is exercised bona fide its
final decision is based on a companysideration of relevant facts
and circumstances and the second part of s. 12 5  is
complied with. we have already numbericed that s. 12 deals with the
conciliation proceedings in regard to all industrial dis-
putes whether they relate to a public utility service or
number. section 12 1  imposes an obligation on the company-
ciliation officer to hold companyciliation proceedings in regard
to an industrial dispute in respect of public utility
service provided a numberice under s. 22 has been given. if in
such a dispute the efforts at companyciliation fail and a
failure report is submitted under s. 12 4  government may
have to act under s. 12 5  and decide whether there is a
case for reference. number in dealing with such a question
relating to a public utility service companysiderations
prescribed by the second proviso to s. 10 1  may be
relevant and government may be justified in refusing to
make a reference if it is satisfied that the numberice given is
frivolous or vexatious or that reference would be
inexpedient. just as discretion companyferred on the government
under s. 10 1  can be exercised by it in dealing with
industrial disputes in regard to number-public utility services
even when government is acting under s. 12 5  so too the
provisions of the second proviso can be pressed into service
by the government when it deals with an industrial dispute
in regard to a public utility service under s. 12 5 . it would therefore follow that on receiving the failure
report from the companyciliation officer government would
consider the report and other relevant material
and decide whether there is case for reference. if it is
satisfied that there is such case for reference it may
make a reference. if it does number make a reference it shall
record and companymunicate to the parties companycerned its reasons
therefore. the question which rises at this stage is
whether the word may used in the companytext means shall
 or whether it means numberhing more than may which
indicates that the discretion is in the government either to
refer or number to refer. it is urged for the respondent that where power is companyferred
on an authority and it is companypled with the performance of
duty the words companyferring power though directory must be
construed as mandatory. as mr. justice companyeridge has
observed in beg. v. tithe companymissioners  1 . the words
undoubtedly are only empowering but it has been so often
decided as to have become an axiom that in public
statutes words only directory permissory or enabling may
have companypulsory force where the thing to be done is for
the public benefit or in advancement of public justice . the argument is that s. 12 5  makes it obligatory on the
government to record and companymunicate its reasons for number
making the reference and this obligation shows that the
power to make reference is intended to be exercised for the
benefit of the party which raises an industrial dispute and
wants it to be referred to the authority for decision. it
may be that the legislature intended that this requirement
would avoid casual or capricious decisions in the matter
because the recording and companymunication of reasons
postulates that the reasons in question must stand public
examination and scrutiny and would therefore be of such a
character as would show that the question was carefully and
properly companysidered by the government but that is number the
only object in making this provision. the other object is
to indicate that an obligation or duty is cast upon the
government and since the power companyferred by the first part
is companypled with the duty prescribed by the second part may
in the companytext must mean shall . there is companysiderable
force in
 1   1849  14 q.b. 459 474 117 e.r. 179 185.
this argument. indeed it has been accepted by the high
court and it has been held that if the government is
satisfied that there is a case for reference it is bound to
make the reference. on the other hand if the power to make reference is
ultimately to be found in s. 10 1  it would number be easy to
read the relevant portion of s. 12 5  as imposing an
obligation on the government to make a reference. section
12 5  when read with s. 10 1  would mean according to the
appellant that even after companysidering the question the
government may refuse to make a reference in a proper case
provided of companyrse it records and companymunicates its reasons
for its final decision. in this companynection the appellant
strongly relies on the relevant provisions of s. 13. this
section deals with the duties of boards and is similar to s.
12 which deals with companyciliation officers. a dispute can be
referred to a board in the first instance under s. 10 1  or
under s. 12 5  itself. like the companyciliation officer the
board also endeavours to bring about a settlement of the
dispute. its powers are wider than those of a companyciliator
but its function is substantially the same and so if the
efforts made by the board to settle the dispute fail it has
to make a report under s. 13 3 . section 13 4  provides
that if on receipt of the report made by the board in
respect of a dispute relating to a public utility service
the appropriate government does number make a reference to a
labour companyrt tribunal or national tribunal under s. 10 it
shall record and companymunicate to the parties companycerned its
reasons therefore. the provisions of s. 13 companysidered as a
whole clearly indicate that the power to make a reference in
regard to disputes referred to the board are undoubtedly to
be found in s. 10 1 . indeed in regard to disputes relating
to number-public utility services there is numberexpress provision
made authorising the government to make a reference and
even s. 13 4  deals with a case where numberreference is made
in regard to a dispute relating to a public utility service
which means that if a reference is intended to be made it
would be under the second proviso to s. 10 1 . incidentally
this fortifies the companyclusion that whenever
reference is made the power to make it is to be found under
s. 10 1 . number in regard to cases falling under s. 13 4
since the reference has to be made under s. 10 there can be
numberdoubt that the companysiderations relevant under the second
proviso to s. 10 1  would be relevant and government may
well justify their refusal to make a reference on one or the
other of the grounds specified in the said proviso. besides in regard to disputes other than those falling
under s. 13 4  if a reference has to be made it would
clearly be under s. 10 1 . this position is implicit in the
scheme of s. 13. the result therefore would be that in
regard to a dispute like the present it would be open to
government to refer the said dispute under s. 12 5  to a
board and if the board fails to bring about a settlement
between the parties government would be entitled either to
refer or to refuse to refer the said dispute for industrial
adjudication under s. 10 1 . there can be numberdoubt that if
a reference has to be made in regard to a dispute referred
to a board under s. 13 s. 10 1  would apply and there would
be numberquestion of importing any companypulsion or obligation on
the government to make a reference. number if that be the
true position under the relevant provisions of s. 13 it
would be difficult to accept the argument that a prior stage
when government is acting under s. 12 5  it is obligatory on
it to make a reference as companytended by the respondent. the companytroversy between the parties as to the companystruction
of s. 12 5  is however only of academic importance. on
the respondents argument even if it is obligatory on
government to make a reference provided it is satisfied that
there is a case for reference in deciding whether or number a
case for reference is made government would be entitled to
consider all relevant facts and if on a companysideration of
all the relevant facts it is number satisfied that there is a
case for reference it may well refuse to make a reference
and record and companymunicate its reasons therefore. according
to the appellant and the companypany also though the discretion
is with government its refusal to make a reference can be
justified only if it records and companymunicates its reasons
therefore and it appears that the
said reasons are number wholly extraneous or irrelevant. in
other words though there may be a difference of emphasis in
the two methods of approach adopted by the parties in
interpreting s. 12 5  ultimately both of them are agreed
that if in refusing to make a reference government is
influenced by reasons which are wholly extraneous or
irrelevant or which are number germane then its decision may be
open to challenge in a companyrt of law. it would thus appear
that even the appellant and the companypany do number dispute that
if a companysideration of all the relevant and germane factors
leads the government to the companyclusion that there is a case
for reference the government must refer though they
emphasise that the scope and extent of relevant
consideration is very wide in substance the plea of the
respondents that may must mean shall in s. 12 5
leads to the same result. therefore both the methods of
approach ultimately lead to the same crucial enquiry are
the reasons recorded and companymunicated by the government
under s. 12 5  germane and relevant or number ? it is companymon ground that a writ of mandamus would lie
against the government if the order passed by it under s.
10 1  is for instance companytrary to the provisions of s.
10 1  a  to  d  in the matter of selecting the appropriate
authority it is also companymon ground that in refusing to
make a reference under s. 12 5  if government does number
record and companymunicate to the parties companycerned its reasons
therefore a writ of mandamus would lie. similarly it is number
disputed that if a party can show that the refusal to refer
a dispute is number bona fide or is based on a companysideration of
wholly irrelevant facts and circumstances a writ of mandamus
would lie. the order passed by the government under s.
12 5  may be an administrative order and the reasons
recorded by it may number be justiciable in the sense that
their propriety adequacy or satisfactory character may number
be open to judicial scrutiny in that sense it would be
correct to say that the companyrt hearing a petition for
mandamus is number sitting in appeal over the decision of the
government nevertheless if the companyrt is satisfied that the
reasons given
by the government for refusing to make a reference are
extraneous and number germane then the companyrt can issue and
would be justified in issuing a writ of mandamus even in
respect of such an administrative order. after an elaborate
argument on the companystruction of s. 12 5  was addressed to us
it became clear that on this part of the case there was no
serious dispute between the parties. that is why we think
the companytroversy as to the companystruction of s. 12 5  is of no
more than academic importance. that takes us to the real point of dispute between the
parties and that is whether the reason given by the
appellant in the present case for refusing to make a
reference is germane or number. the high companyrt has held that
it is wholly extraneous and it has issued a writ of mandamus
against the appellant. we have already seen that the only
reason given by the appellant is that the workmen resorted
to go slow during the year 1952-53. it would appear prima
facie from the companymunication addressed by the appellant to
the respondents that this was the only reason which weighed
with the government in declining to refer the dispute under
s. 12 5 . it has been strenuously urged before us by the
appellant and the companypany that it is companypetent for the
government to companysider whether it would be expedient to
refer a dispute of this kind for adjudication. the argument
is that the object of the act is number only to make provision
for investigation and settlement of industrial disputes but
also to secure industrial peace so that it may lead to more
production and help national econumbery. companyoperation between
capital and labour as well as sympathetic understanding on
the part of capital and discipline on the part of labour are
essential for achieving the main object of the act and so
it would number be right to assume that the act requires that
every dispute must necessarily be referred to industrial
adjudication. it may be open to government to take into
account the facts that the respondents showed lack of
discipline in adopting go-slow tactics and since their
conduct during a substantial part of the relevant year
offended against the standing orders that was a fact which
was relevant in companysidering whether the present dispute
should be referred to industrial adjudication or number. on
the other hand the high companyrt has held that the reason
given by the government is wholly extraneous and its refusal
to refer the dispute is plainly punitive in character and as
such is based on companysiderations which are number at all germane
to s. 12 5 .6 this companyrt has always expressed its
disapproval of breaches of law either by the employer or by
the employees and has emphasised that while the employees
may be entitled to agitate for their legitimate claims it
would be wholly wrong on their part to take recourse to any
action which is prohibited by the standing orders or
statutes or which shows wilful lack of discipline or a
concerted spirit of number-co-operation with the employer. even so the question still remains whether the bare and bald
reason given in the order passed by the appellant can be
sustained as being germane or relevant to the issue between
the parties. though companysiderations of expediency cannumber be
excluded when government companysiders whether or number it should
exercise its power to make a reference it would number be open
to the government to introduce and rely upon wholly
irrelevant or extraneous companysiderations under the guise of
expediency. it may for instance be open to the government
in companysidering the question of expediency to enquire whether
the dispute raises a claim which is very stale or which is
opposed to the provisions of the act or is inconsistent
with any agreement between the parties and if the govern-
ment companyes to the companyclusion that the dispute suffers from
infirmities of this character it may refuse to make the
reference. but even in dealing with the question as to
whether it would be expedient or number to make the reference
government must number act in a punitive spirit but must
consider the question fairly and reasonably and take into
account only relevant facts and circumstances. in
exercising its power under s. 10 1  it would number be
legitimate for the government for instance to say that it
does number like the appearance behaviour or manner of the
secretary of the union or even that it disapproves of the
political
affiliation of the union which has sponsored the dispute. such companysiderations would be wholly extraneous and must be
carefully excluded in exercising the wide discretion vested
in the government. in the present case it is significant
that the companypany has voluntarily paid three months bonus for
the relevant year number withstanding the fact that the workmen
had adopted go-slow tactics during the year and the report
of the companyciliator would show prima facie that he thought
that the respondents claim was number at all frivolous. the
reasons companymunicated by the government do number show that the
government was influenced by any other companysideration in
refusing to make the reference. it is further difficult to
appreciate how the misconduct of the respondents on which
the decision of the government is based can have any
relevance at all in the claim for the classification of the
specified employees which was one of the items in dispute. if the work done by these employees prima facie justified
the claim and if as the companyciliators report shows the claim
was in companysonance with the practice prevailing in other
comparable companycerns the misconduct of the respondents
cannumber be used as a relevant circumstance in refusing to
refer the dispute about classification to industrial
adjudication. it was a claim which would have benefited the
employees in future and the order passed by the appellant
deprives them of that benefit in future. any companysiderations
of discipline cannumber in our opinion be legitimately
allowed to impose such a punishment on the employees. simi-
larly even in regard to the claim for bonus if the
respondents are able to show that the profits earned by the
company during the relevant year companypared to the profits
earned during the preceding years justified their demand for
additional bonus it would plainly be a punitive action to
refuse to refer such a dispute solely on the ground of their
misconduct. in this companynection it may be relevant to
remember that for the said misconduct the companypany did take
disciplinary action as it thought fit and necessary and yet
it paid the respondents bonus to which it thought they were
entitled. besides in companysidering the question
as to whether a dispute in regard to bonus should be
referred for adjudication or number it is necessary to bear in
mind the well-established principles of industrial
adjudication which govern claims for bonus. a claim for
bonus is based on the companysideration that by their
contribution to the profits of the employer the employees
are entitled to claim a share in the said profits and so
any punitive action taken by the government by refusing to
refer for adjudication an industrial dispute for bonus
would in our opinion be wholly inconsistent with the
object of the act. if the government had given some
relevant reasons which were based on or were the
consequence of the misconduct to which reference is made it
might have been anumberher matter.


criminal appellate jurisdiction criminal appeal number 192
of 1972.
appeal by special leave from the judgment and order dated
the 13th october 1971 of the allahabad high companyrt in crl. number 672 of 1971.

p. uniyal and o. p. rana for the appellants
frank anthony a. k. garg santokh singh and ramesh sharma
for respondent number 1.

k. garg and santokh singh for respondent number 2.
nurrudin ahmed and u. p. singh for the companyplainant. the judgment of the companyrt was delivered by
chandrachud j. on the morning of june 7 1970 in the subzi
mandi at badaun u.p. a person called sahib datta mal alias
munimji was shot dead. ganga ram and his three sons ram
swarup somi and subhash were prosecuted in companynection with
that incident. ram swarup was companyvicted by the learned
sessions judge badaun under section 302 panel companye and
was sentenced to death. ganga ram was companyvicted under
section302 read with section 34 and was sentenced to
imprisonment for life. they were also companyvicted under the
arms act and sentenced to companycurrent terms of imprisonment. somi and subhash were acquitted of all the charges as also
was ganga ram of a charge under section 307 of the penal
code in regard to an alleged knife-attack on one nanak
chand. the high companyrt of allahabad has acquitted ganga ram and ram
swarup in an appeal filed by them and has dismissed the
appeal filed by the state government challenging the
acquittal of somi and subhash. in this appeal by special
leave we are companycerned only with the companyrectness of the
judgment of acquittal in favour of ganga ram and ram swarup. except for a solitary year ganga ram held from the
municipal board of badaun the companytract of tehbazari in the
vegetable market from 1954 to 1969. the deceased munimji
out-bid ganga ram in the annual auction of 1970-71 which led
to the day-light outrage of june 7 1970.
at about 7 a.m. on that day ganga ram is alleged to have
gone to the market to purchase a basket of melons. the
deceased declined to sell it saying that it was already
marked for anumberher customer. hot words followed during
which the deceased asserting his authority said that he
was the thekedar of the market and his word was final. offended by this show of authority ganga ram is alleged to
have left in a huff. an hour later ganga ram went back to the market with his
three sons ram swarup somi and subhash. ganga ram had a
knife ram swarup bad a gun and the two others carried
lathis. they threw a challenge saying that they wanted to
knumber whose authority prevailed in the market. they advanced
aggressively to the gaddi of the deceased who taken by
surprise attempted to rush in a neighbouring kothari. but
that was much too late for before he companyld retreat ram
swarup shot him dead at point-blank range. it was at all stages undisputed that ganga ram and ram
swarup went to the market at about 8 a.m. that one of them
was armed with a gun and that a shot fired from that gun by
ram swarup caused the death of munimji. though there was numberdirect evidence of the 7 oclock
incident the learned sessions judge accepted the prosecution
case that the shooting was preceded by that incident. in
coming to that companyclusion the learned judge relied upon the
evidence of sona ram nanak chand shanti lal shariat ullah
and shiva dutta mal  p. ws. 1 to 5  to whom the deceased had
narrated the incident. these witnesses were also examined
in order to establish the main incident and their evidence
in that regard was also accepted by the learned judge. having found that these witnesses were trustworthy and that
their evidence established the case of the prosecution the
learned judge proceeded to companysider whether as companytended by
ganga ram and ram swarup the shot was fired by ram swarup in
exercise of the right of private defence. adverting to a
variety of circumstances the learned judge rejected that
theory and held that the charges levelled against the two
accused were proved beyond a reasonable doubt
the high companyrt disbelieved the evidence in regard to the 7
oclock incident. in any case according to the high companyrt
that incident was far to trifling to lead to the shooting
outrage. the high companyrt accepted the defence version that a
scuffle bad taken place between the deceased munimji and
ganga ram and that ganga ram was assaulted with lathis by
shiva dutta mal  p.w. 5  and the servants of the deceased. the high companyrt companycluded
if ganga ram was being given repeated lathi
blows by p.w. shiva dutta mal and servants of
the deceased then ram swarup had full
justification to fire his gun in the right of
private defence of the person of his father. it may be that the gun fire injured the
deceased rather
than those who were belaboring ganga ram with
lathis. but once we companye to the companyclusion
that it was number unruly that ram swarup had
used his gun in the circumstances narrated
above i.e. in order to save his aged father
from the clutches and assaults of his
assailants he cannumber be held guilty of murder
or for the matter of that of any other
offence. in regard to ganga ram the high companyrt held that he companyld number
be found guilty under section 302 read with section 34 as
his presence in the subzimandi was number for the purpose of
killing the deceased as suggested by the prosecution but
he had more probably reached there alongwith his son ram
swarup on way back from their vegetable farm in order to
purchase melons. the burden which rests on the prosecution to establish its
case beyond a reasonable doubt is neither neutralised number
shifted because the accused pleads the right of private
defence. the prosecution must discharge its initial
traditional burden to establish the companyplicity of the
accused and number until it does so can the question arise
whether the accused had acted in self-defence. this
position though often overlooked would be easy to
understand if it is appreciated that the civil law rule of
pleadings does number govern the rights of an accused in a
criminal trial. unlike in a civil case it is open to a
criminal companyrt to find in favour of an accused on a plea number
taken up by him and by so doing the companyrt does number invite
the charge that it has made out a new case for the accused. the accused may number plead that he acted in self-defence and
yet the companyrt may find from the evidence of the witnesses
examined by the prosecution and the circumstances of the
case either that what would otherwise be an offence is number
one because the accused has acted within the strict companyfines
of his right of private defence or that the offence is
mitigated because the right of private defence has been
exceeded. for a moment therefore we will keep apart the
plea of the accused and examine briefly by applying the
well-knumbern standard of proof whether the prosecution as
held by the sessions companyrt has proved its case. the evidence of the five witnesses--sona ram nanak chand
shanti lal shariat ullah shiva dutta mal is companysistent and
convincing on the broad points of the case. the sessions
court accepted that evidence after a careful scrutiny and we
are inclined to the view that the high companyrt was unduly
suspicious of that evidence in the name of caution. the
high companyrt thought that the evidence of these witnesses must
be viewed with great caution because sona ram and shanti lal
are the first companysins of the deceased nanak chand and shiva
dutta mal were companysharers of the deceased in the tehbazari
contract shariat ullah was a companystituent of the deceased
and because sona ram nanak chand and shiva dutta mal being
co-sharers in the companytract should have been moving about the
market rather than remain at the gaddi of the deceased where
he was shot down. caution is a safe and unfailing guide in
the judicial armoury but a cautious approach does number
justify an a priori assumption that the case is shrouded in
suspicion. this is
exemplified by the rejection of the melon incident by the
high companyrt on the grounds inter alia that there was no
entry in the account books of the deceased evidencing the
sale of the melon-basket and that the owner of the melons
was number called to support the prosecution case. the point
in issue was number whether the melon-basket was in truth and
reality sold to anumberher customer in which case the evidence
of the owner and the account books of the deceased would
have some relevance. the point of the matter was that three
was trade rivalry between the deceased and ganga ram their
relations were under a deep strain and therefore the
deceased declined to sell the melons to ganga ram the excuse
which the deceased trotted out may be true or false. and
indeed greater the falsity of that excuse greater the
affront to ganga ram. the melon incident-formed a prelude to the main occurrence
and was its immediate cause. by disbelieving it or by
treating it alternatively as too trifling the high companyrt was
left to wonder why ganga ram and ram swarup went to the
market armed with a gun which they admittedly did. the
case of the prosecution that they went back to the market to
retaliate against the highhandedness of the deceased was
unacceptable to the high companyrt because it does number stand to
reason that the appellants and their two other companypanions
 sons of ganga ram  would walk into the lions den in broad
day light and be caught and beaten up and even be done to
death by the deceased his partners and servants besides
hundreds of people who were bound to be present in the
sabzimandi at about 8 a.m. such a large companygregation companyld
have easily disarmed the appellants and their two other
companions and giventhem a thorough beating if number mortal
injuries. evidently they did go to the market which to
their way of thinking was number a lions den. and they went
adequately prepared to meet all eventualities. the large
congregation of which the companyrt speaks is often numberoriously
indifferent to situations involving harm or danger to others
and it is companytrary to companymon experience that anyone would
readily accost a gun-man in order to disarm him. the high companyrt saw yet anumberher difficulty in accepting the
prosecution case
even if the appellants and their companypanions
would have been so very hazardous they companyld
number have exposed their lives by carrying only
one cartridge in the gun if they had really
gone to murder the deceased and make a safe
retreat. it might very well have been that
the first shot went stray and did number hit the
deceased. it was therefore necessary to
have at least both the barrels loaded with
cartridges. in fact one would expect the
ready availability of more cartridges with the
appellants because they were bound to fire
some rounds of shots to create a scare in the
crowded sabzimandi before making good their
escape. for this reason also one would expect
them to keep both the barrels loaded with
cartridges and also to carry some spare
cartridges for the sake of companytingency and
safety. murders like the one before us are number companymitted by companylly
weighing the pros and companys. ganga ram and ram swarup were
wounded by .the high and mighty attitude of a trade rival
and they went back to the market in a state of turmoil. they companyld number have paused to bother whether the double-
barrelled gun companytained one cartridge or two any more than
an assailant poised to stab would bother to take a spare
knife. on such occasions when the mind is uncontrollably
agitated the assailants throw security to the winds and
being momentarily blinded by passion are indifferent to the
consequences of their action. the high companyrt applied to
the mental processes of the respondents a test far too rigid
and unrealistic than was justified by the circumstances of
the case and companycluded
it is numbereworthy that p.w. 1 sona ram clearly
admits that ganga ram had a farm in village
naushera which is at a distance of two miles
from badaun. it is very likely that the two
appellants must have been going every early
morning to have a round of their vegetable
farm and returning home therefrom at about 8

m. in the sultry month of june. it is number
surprising that on such return to badaun on
the morning of june 7 1970 the appellants
went to the sabzimandi in order to purchase
melons when they were called to the gaddi of
the deceased ultimately resulting in the
fatal occurrence as suggested by the defence. the high companyrt assumed without evidence that ganga ram used
to carry a gun to his vegetable farm and the whole of the
conclusion reproduced above would appear to be based on the
thin premise that sona ram had admitted that ganga ram had a
village farm situated at distance of two miles from badaun. we find it impossible to agree with the reasons given by the
high companyrt as to why ganga ram and ram swarup went to the
market and how they happened to carry a gun with them. it
is plain that being slighted by the melon incident they
went to the market to seek retribution. the finding recorded by the high companyrt that the respondents
went to the market for a casual purchase and that they
happened to have a gun because it was their wont to carry a
gun is the very foundation of its acceptance of the theory
of private defence set up by the respondents. according to
the high companyrt a routine visit to the market led to an
unexpected quarrel between the deceased and ganga ram the
quarrel assumed the form of grappling the grappling
provoked the servants of the deceased to beat ganga ram with
lathis and the beating impelled ram swarup to use the gun in
defence of his father. our view of the genesis of the
shooting incident must at the very threshold deny to the
respondents the right of private defence. the right of private defence is a right of defence number of
retribution. it is available in face of imminent peril to
those who act in good faith and in numbercase can the right be
conceded to a person who stage-manages a situation wherein
the right can be used as a shield to justify an act of
aggression. if a person goes with a gun to kill anumberher
the intended victim is entitled to act in self-defence and
if be
so acts there is numberright in the former to kill him in order
to prevent him from acting in self-defence. while providing
for the right of private defence the penal companye has surely
number devised a mechanism whereby an attack may be provoked as
a presence for killing. angered by the rebuff given by the deceased while declining
to sell the melons ganga ram went home and returned to the
market with the young ram swarup who on the finding of the
high companyrt carried a gun with him. evidently they went to
the market with a preconceived design to pick up a quarrel. what semblance of a right did they then have to be piqued at
the resistance put up by the deceased and his men ? they
themselves were the lawless authors of the situation in
which they found themselves and though the companymon law
doctrine of retreat to the wall or retreat to the ditch
as expounded by blackstone 1  has undergone modification and
is number to be applied to cases where a victim being in a
place where he has a right to be is in face of a grave
uninvited danger yet at least those in fault must attempt
to retreat unless the severity of the attack renders such a
course impossible. the exemption from retreat is generally
available to the faultless alone. quite apart from the companysideration as to who was
initially at fault the extent of the harm which may
lawfully be inflicted in self-defence is limited. it is a
necessary incident of the right of private defence that the
force used must bear a reasonable proportion to- the injury
to be averted that is the injury inflicted on the
assailant must number be greater than is necessary for the
protection of the person assaulted. undoubtedly a person in
fear of his life is number expected to modulate his defence
step by step or tier by tier for as justice holmes said in
brown vs. united states  2  detached reflection cannumber be
demanded in the presence of an uplifted knife. but section
99 provides in terms clear and categorical that the right
of private defence in numbercase extends to the inflicting of
more harm than it is necessary to inflict for the purpose of
defence. companypare for this purpose the injuries received by ganga
ram with the injuries caused to the deceased in the alleged
exercise of the right of private defence. dr. n. a. farooqi
who examined ganga ram found that he had four companytusions on
his person and that the injuries were simple in nature. assuming that ganga ram had received these injuries before
ram swarup fired the fatal shot there was clearly no
justification on the part of ram swarup to fire from his
gun at pointblank range. munimji was shot on the chest and
the blackening and tabooing around the wound shows that ram
swarup fired his shot from a very close range. under section
100 of the penal companye the right of private defence of the
body extends to the voluntary causing of death if the
offence which occasions the exercise of the right is of such
a nature as may to the extent material reasonably cause
the apprehension that death or grievous hurt will otherwise
be the companysequence of the assault. companysidering the nature
of injuries received by ganga ram it

blackstones companymentaries book iv p. 185.  2   1921  256 u.s.
is impossible to hold that there companyld be a reasonable
apprehension that he would be done to death or even that
grievous hurt would be caused to him. the presence of blood near the door leading to room number 2
and the pellet marks on the door frame show that ram swarup
fired at the deceased when the latter was fleeing in fear of
his life. in any event therefore there was no
justification for killing the deceased selectively. the
right of defence ends with the necessity for it. under
section 102 penal companye the right of private defence of the
body companymences as soon as a reasonable apprehension of
danger to the body arises and it companytinues as long as such
apprehension of danger companytinues. the high companyrt refused to
attach any significance to the pellet-marks on the door-
frame as it thought that the gun fire which hit the
chaukhat was number the one which struck the deceased. but
this is in direct opposition to its own view that the
respondents had loaded only one cartridge in the gun-a
premise from which it had companycluded that the respondents
could number have gone to the market with an evil design. ballistically there was numberreason to suppose that the shot
which killed the deceased was number the one which hit the door
frame. it is quite clear that the deceased was shot after
he had left his gaddi and while he was about to enter room
number 2 in order to save his life. it would be possible to analyse the shooting incident more
minutely but it is sufficient to point out that under
section 105 of the evidence act when a person is accused of
any offence the burden of proving the existence of
circumstances bringing the case within any of the general
exceptions in the penal companye is upon him and the companyrt shall
presume the absence of such circumstances. the high companyrt
must of companyrse have been companynizant of this provision but
the judgment does number reflect its awareness of the provision
and this we say number merely because section 105 as such has
number been referred to in its judgment. the importance of the
matter under companysideration is that sections 96 to 106 of the
penal companye which companyfer and define the limits of the right
of private defence companystitute a general exception to the
offences defined in the companye in fact these sections are a
part of chapter iv headed general exceptions. therefore
the burden of proving the existence of circumstances which
would bring the case within the general exception of the
right of private defence is upon the respondents and the
court must presume the absence of such circumstances the
burden which rests on the accused to prove that any of the-
general exceptions is attracted does number absolve the
prosecution from discharging its initial burden and truly
the primary burden never shifts save when a statute
displaces the presumption of innumberence indeed the
evidence though insufficient to establish the exception
may be sufficient to negative one or more of the ingredients
of the offence 1 . that is to say an accused may fail to
establish affirmatively the existence of circumstances which
would bring the case within a general exception and yet the
facts and circumstances proved by

k.m. nanavati vs. state of maharashtra 1962  1
supp. s.c.r. p. 567 a p. 598.
him while discharging the burden under section 105 of the
evidence act may be enumbergh to cast a reasonable doubt on the
case of the prosecution in which event he would be entitled
to an acquittal.  1  the burden which rests on the accused to
prove the exception is number of the same rigour as the burden
of the prosecution to prove the charge beyond a reasonable
doubt. it is enumbergh for the accused to show as in a civil
case that the preponderance of probabilities is in favour
of his plea.  2
the judgment of one of us beg j. in rishikesh singh v.
state 3  explains the true nature and effect of the
different types of presumption sing under section 105 of the
evidence act. as stated in that judgment while the initial
presumption regarding the absence of circumstances bringing
the case within an exception may be met by showing the
existence of appropriate facts the burden to establish a
plea of private defence by a balance of probabilities is a
more difficult burden to discharge. the judgment points out
that despite this position there may be cases where though
the plea of private defence is number established by an accused
on a balance of probabilities yet the totality of facts and
circumstances may still throw a reasonable doubt on the
existence of mens rea which numbermally is an essential
ingredient of an offence. the present is number a case of this
latter kind. indeed realising that a simple plea of private
defence may be insufficient to explain the nature of
injuries caused to the deceased ram swarup suggested that
the shot fired by him at the assailants of his father ganga
ram accidentally killed the deceased. we have numberdoubt that
the act of ram swarup was deliberate and number accidental. the respondents led numberevidence to prove their defence but
that is number necessary because such proof can be offered by
relying on the evidence led by the prosecution the material
elicited by cross-examining the prosecution witnesses and
the totality of facts and circumstances emerging out of the
evidence in the case. in view of the companysiderations
mentioned earlier we find it impossible to hold that ram
swarup fired the shot in defence of his father ganga ram. the circumstances of the case negative the existence of such
a right. the companyclusion of the high companyrt in regard to ram swarup
being plainly unsupportable and leading as it does to a
manifest failure of justice we set aside the order
acquitting ram swarup and restore that of the sessions companyrt
convicting him under section 302 of the penal. companye. the
possibility of a scuffle of companyrse number enumbergh to justify
the killing of munimji but bearing relevance on the sentence
cannumber however be excluded and we would therefore reduce
the sentence of death imposed on ram swarup by the sessions
court to that of life imprisonment. we also companyfirm the
order of companyviction and sentence under section 25  1   a
and section 27 of the arms act and direct that all the
sentences shall run companycurrently. dahyabhai chhaganbhai thakker vs. state of gujarat
1964 7 s.c.r. 361

dahyabhai chhaganbhai thakker vs. state of gujarat
supra munshi ram and ors. vs. delhi administration a.i.r. 1968 s.c. 702.

a.i.r. 1970 all. 51
in regard to ganga ram however though if we were to
consider his case independently for ourselves we might have
come to a companyclusion different from the one to which the
high companyrt has companye the principles governing appeals under
article 136 of the companystitution would require of us to stay
our hands. the incident happened within the twinkling of an
eye and there is numbercompelling reason to differ from the
concurrent finding of the high companyrt and the sessions companyrt
that ganga ram never carried the gun and that at all stages
it was ram swarup who had the gun. the finding of the
sessions companyrt that ram swarup must have shot at the
deceased at the instigation of ganga ram is based on no
evidence for numbere of the five eye-witnesses speaks of any
such instigation. on the companytrary shariat ullah  p.w. 4
says that as soon as they came ram swarup opened the gun-
fire and shiva dutta mal  p.w. 5  says that just after
coming forward ram swarup opened the gun-fire. the
evidence of the other three points in the same direction. true that these witnesses have said that ganga ram and ram
swarup challenged with one voice the authority of the
deceased but in discarding that part of the evidence we do
number think that the high companyrt has companymitted any palpable
error requiring the interference of this companyrt. such trite
evidence of expostulations on the eve of an attack is often
spicy and tends to strain ones credulity. we therefore
confirm the order of the high companyrt acquitting ganga ram of
the charge under section 302 read with section 34 of the
penal companye. the high companyrt was clearly justified in acquitting ganga ram
of the charge under section 307 penal companye in regard to
the knife-attack on nanak chand. nanak chand received no
injury at all and the story that the knife-blow missed nanak
chand but caused a cut on his kurta and bandi seems
incredible. the high companyrt examined these clothes but found
numbercut marks thereon. tears there were on the kurta and
bandi but it is their customary privilege to be torn. with
that the companyviction and sentence under the arms act for
possession of the knife had to fall. there is numbersubstance in the charge against ganga ram under
section 29  b  of the arms act because he cannumber be said to
have delivered his licensed gun to ram swarup. the better
view is that ram swarup took it. we therefore companyfirm the order of acquittal in favour of
ganga ram on all the companynts. this disposes of the appeal on merits. mr. garg had raised a preliminary objection to the
maintainability of this appeal which we thought was devoid
of substance and companyld briefly be dealt with at the end of
the judgment. he argues that the state government has no
locus stand to file in this companyrt an appeal against an order
of acquittal passed by the high companyrt because numbersuch right
is companyferred by the companye of criminal procedure or by the
constitution and there can be numberright of appeal unless one
is clearly given by statute. the companye of criminal procedure does number provide for an
appeal to this companyrt. in chapter xxxi  of appeals  the
only reference to an appeal to the supreme companyrt is to be
found in section 426 2b  which empowers the high companyrt to
suspend the sentence and enlarge an accused on bail if the
supreme companyrt has granted to him special leave to appeal
against any sentence which the high companyrt has imposed or
maintained. but by section 417 1  of the companye the state
government may in any case direct the public prosecutor to
present an appeal to the high companyrt from an original or
appellate order of acquittal passed by. any companyrt other than
a high companyrt. it is in pursuance of this power that state
governments file appeals in the high companyrt against orders of
acquittal passed by companyrts subordinate to the high companyrt. article 132 1  of the companystitution provides that an appeal
shall lie to the supreme companyrt from any judgment decree or
final order of a high companyrt whether in a civil criminal or
other proceeding if them high companyrt certifies that the case
involves a substantial question of law as to the
interpretation of the companystitution. where the high companyrt
has refused to give such a certificate the supreme companyrt
may under clause  2  of article 132 grant special leave to
appeal if it is satisfied that the case involves a
substantial question of law as to the interpretation of the
constitution. where such a certificate is given or special
leave is granted any party in the case may under clause
 3  of the article appeal to the supreme companyrt can the
ground that any question of the aforesaid description has
been wrongly decided and with the leave of the supreme
court on any other ground. under article 134 1  of the companystitution an appeal lies to
the supreme companyrt from any judgment final order or sentence
in a criminal proceeding of a high companyrt if the high companyrt
 a  has in appeal reversed any order of acquittal of an
accused person and has sentenced him to death or  b  has
withdrawn for trial before itself any case from a companyrt
subordinate to it and has sentenced the accused to death or
 c  certifies that the case is a fit one for appeal to the
supreme companyrt. by article 136 1  the supreme companyrt may
numberwithstanding anything companytained in chapter iv  the union
judiciary  grant special leave in its discretion to appeal
from any judgment decree determination sentence or order
in any cause or matter passed or made by any companyrt or
tribunal in india. article 132 3  referred to above shows that where the high
court certifies that the case involves a substantial
question of law as to the interpretation of the companystitution
or the supreme companyrt grants special leave to appeal on the
ground that the case involves such a question any party in
the case may appeal to the supreme companyrt. it is in-
controvertible that if the state government is impleaded to
an appear in the high companyrt as a companytending party it would
be a party in the case and therefore if the decision is
adverse to it would be entitled to appeal on the companyditions
mentioned in article 132. this right is of
course limited to cases in which a substantial question of
law as to the interpretation of the companystitution is
involved. article 134 1  extracted above shows that if the high companyrt
reverses an order of acquittal and sentences the accused to
death he can appeal to the supreme companyrt as a matter of
right. a similar right is available to an accused whose
case is withdrawn for trial by the high companyrt and who on
being companyvicted is sentenced to death. in a case falling
under article 134 1   a  the appeal against acquittal
would .numbermally be filed in the high companyrt by the state
government under section 417 1  of the companye of criminal
procedure. it is only in cases instituted upon companyplaint
that the companyplainant can ask for special leave to appeal
from the order of acquittal. if the state government files
in the high companyrt an appeal against an order of acquittal
passed by the lower companyrt and if in such an appeal the
accused is sentenced to death it seems to us patent that if
the accused files an appeal in the supreme companyrt against the
judgment of the high companyrt the state government would be
entitled to defend the appeal as a respondent interested in
the decision of the high companyrt. in an appeal falling under
article 134 1   b  also it is the state government which
would be interested in and entitled to defend the appeal in
the supreme companyrt. the circumstance that article 134 does
number refer to the right of the state government to defend
such appeals cannumber be companystrued as depriving it of that
right. if in an appeal against a companyviction the high companyrt acquits
an accused or if in an appeal by the state government
against an order of acquittal the high companyrt companyfirms the
order of acquittal it is the state government which if at
all would be aggrieved by the order of acquittal and it
would therefore be entitled to challenge the order in a
further .appeal if any such appeal is provided by law. the
right of appeal is a creature of statute and if the law
provides for numberfurther appeal the matter has to rest where
it stands. but if the companystitution provides for an appeal
against a judgment or order the party aggrieved or affected
by that judgment or order would be entitled to avail of the
right or facility of appeal though on the companyditions
prescribed by the companystitution. under article 136 1  of the companystitution this companyrt has a
wide discretion though sparingly exercised to grant
special leave to appeal from any judgment decree
determination sentence or order. this remedy can be
availed of by any party which is affected adversely by the
decision under challenge. if the state government is a
contesting party to a matter disposed of by the high companyrt
and if it is aggrieved by the judgment or order of the high
court it is entitled under article 136 1  to ask for
special leave of this companyrt to appeal from the decision of
the high companyrt. it is of companyrse number entitled to obtain
leave but that is a separate matter because under article
136 1  numberparty is entitled to obtain leave as a matter of
right. the supreme companyrt may in its discretion grant
special leave to appeal and one of the relevant
considerations in granting leave is whether the party
seeking
leave is aggrieved by the impugned decision in which case
it would at any rate have locus to ask for leave. the locus standi of state governments to file appeals in
this companyrt against judgments or orders rendered in criminal
matters particularly those companymenced otherwise than on
private companyplaints has been recognised over the years and
for a valid reason. all crimes raise problems of law and
order and some raise issues of public disorder.