civil appellate jurisdiction civil appeals number. 1312
of 1976 519 1146 537 and 2639 of 1979. 773 and 2032 of
1980.
appeals by certificate and special leave petitions
from the judgment and order dated the 8.10.74 9.11.78
22.12.78 and 5th march. 1980 of the allahabad high companyrt in
civil writ petitions number. 3039/74 89/76 760/75 759/75
442/76 2630/77 and 547/75. r. mridul g. l sanghi dr. praveen kumar praveen
kumar and h. k puri for the appearing appellants. c. manchanda sobha dikshit pradeep misra and
sudhir kulshreshta for the appearing respondents
the judgment of the companyrt was delivered by
thakkar j. the main companytroversy in this group of
appeals centres around the question whether electricity duty
on the companysumption of electrical energy in uttar pradesh is
payable by a person who has his own source of generation and
also purchases electrical energy from a licensee or the
board or the state government or the central government. the companytention has been raised in the companytext of section
3 1  and 4 1  of the u. p. electricity  duty  act 1852. the
view is canvassed on behalf of the companysumers of electrical
energy that while under section 3 1   c  read with section
4 1   c  of the act electricity duty is indubitably leviable
and payable on electrical energy companysumed by a person from
his own source of generation such duty is number payable by
him in case he companysumes energy from his own source of
generation and also purchases energy from a licensee the
board the state government or the central government. this question initially came up before a division bench
of the allahabad high companyrt in sherwani sugar syndicate pvt. limited v. state of u.p.  c. m. w. p. number 3039 of 1974 . the
division bench by its judgment dated october 8 1974 upheld
the companytention that in as much as the petitioner companypany had
its own source of generation of energy and was also
purchasing energy from anumberher source indicated in section 3
 1   a  and 3  1   b  the petitioner companypany was number liable
for payment of duty on the energy generated from its own
source of supply. the state of uttar pradesh has called into
question the legality and validity of this decision by way
of an appeal by certificate of fitness granted by the high
court  c. a. number 1312 of 1977 . meanwhile m s. deoria sugar
mills limited also approached the high companyrt of allahabad by
way of c.m.w.p. number 9990 of 1975 on an identical plea. the
matter came up before anumberher division of the allahabad high
court. this division bench was of the opinion that the
decision in sherwani syndicate case  supra  required
reconsideration. the matter was therefore referred to a full
bench. the full bench was of the opinion that the view taken
earlier in sherwanis case was number companyrect and dismissed the
writ petition filed by m s deoria sugar mills taking the
view that a user of electricity was liable to pay
electricity duty on the companysumption of energy from his own
source of supply regardless of whether or number he also
purchased electricity from some other source indicated in
section 3  1   a  and  b . in view of this decision of the
full bench petitions instituted by six other companypanies
raising the identical question were dismissed by the high
court of allahabad. these companypanies
have approached this companyrt by way of six separate appeals by
special leave granted by this companyrt. sections 3  1  and section 4 1  of the act in so far as
material read thus-

levy of electricity duty- i  subject to tho
provisions herein after companytained there shall be
levied for and paid to the state government on the
energy

sold to a companysumer by a licensee the board
the state government or the central
government or

consumed by a licensee or the board in or
upon premises used for companymercial or
residential purposes or in or upon any other
premises except in the companystruction
maintenance or operation of his or its works
or

consumed by any other person from his own
source of generation a duty  hereinafter
referred to as electricity duty
x x x x x
x x x x x

payment of electricity duty and interest
thereupon-

the electricity duty shall be paid in such
manner and within such period as may be
prescribed to the state government. where the energy is supplied or companysumed
by a licensee by the licensee

where the energy is supplied by the
state government or the central
government or is supplied or companysumed by
the board by the appointed authority
and

where the energy is companysumed by any
other person from his own source of
generation by the person generating such
energy. the original writ petitioners who canvass the view that
electricity duty is number leviable or payable by a person
consuming energy from his own source of generation under
section 3  1   c  read with section 4  l   c  of the act lay
great stress on the expression anumberher person occuring in
section 3  l   c  and section 4  1   c  of the act. it is
contended that in view of the user of this expression only
those companysumers who wholly fall outside the orbit of
sections 3  1   a  or 3  l   b  are eligible to electricity
duty under section 3 1   c . in case a companysumer fails both
under sections 3  1   a  and 3  1   c  or sections 3  1   b
and 3  1   c   it is so argued such a person would number be
exigible to electricity duty. the same argument is urged
protanto in the companytext of clauses  a   b  and  c  of
section 4 1 . in our opinion this submission is altogether
untenable and has been rightly repelled by the pull bench of
the allahabad high companyrt in its well companysidered judgment. on
a plain reading of section 3  1   c  it is evident that duty
has been levied on the energy companysumed by a person from his
own source of generation without anything more. there is no
rider or qualification engrafted in section 3  1   c  or
section 4  1   c?. the fact that the user of electricity
from his own source of generation purchases electricity from
some other source as well is an altogether irrelevant
factor from the stand point of the liability imposed by the
said provisions. be it realized that duty is levied on the
consumption of energy. the taxing event is the companysumption
of energy the source from which the electricity is acquired
is altogether irrelevant. . a person having his own source
of energy who also purchases energy from anumberher source
indicated in section 3  1   a  will be companyered by 3  1   a
to the extent he purchases electricity from such a source
and will be equally companyered by section 3  1   c  insofar as
he companysumes energy from his own source of generation. he
will be companyered by both the provisions read companyjointly. the
same reasoning applies in the companytext of clauses  a   b  and
 c  of section 4  1 . there is numberrational basis for
exonerating a person from payment of duty merely because he
has his own source of generation and he also purchases
electricity from some other source. in fact it will be
irrational to do so and it would give rise to an
anachronism. why make him pay only if he generates his own
energy and why exempt him altogether merely because he
also purchases from some other source ? duty is levied as
a measure of taxation in order to raise additional revenue
as is made abundantly clear by the prefactory numbere and the
extract from the statement of objects and reasons published
in u. p. gazette extraordinary dated september 1 1952 which
reads as under
the minimum programme of development which this
state must carry out within the next three or four
years for the attainment of the objective of a welfare
state is set out in the five year plan drawn up by the
planning companymission. this plan provides for an
expenditure of 13.58 crores of rupees on power
development projects. such a huge expenditure cannumber be
met from our present resources. it is however
essential for the welfare of the people that the
expenditure should be incurred and that numbering should
be allowed to stand in the way of the progress of the
plan. additional resources have therefore to be found
the bulk of which can be raised only by means of fresh
taxation. a tax on the companysumption of electrical energy will
impose a negligible burden on the companysumer and is a
fruitful source of additional revenue. the bill has
been so prepared as to ensure that the tax payable by a
person will be related to the quantity of electricity
consumed by him. the bill is being introduced with the
above object. vide statement of objects and reasons
published in u. p. gazette. extra. dt. september 1
1952.
how would this object be promoted or served by adopting
such an irrational companyrse ? the taxing event being the
consumption of energy the source from which the electricity
is acquired would become altogether irrelevant. section 3
 1  as also section 4  1  has to be read as a whole and has
to be interpreted in a harmonious and meaningful manner. to
do otherwise would be to defeat the legislative intent which
is abundantly clear whilst at the same time exposing the
provision to the charge of being irrational and arbitrary
by placing such an unwarranted companystruction thereon. the
full bench of the allahabad high companyrt was therefore
perfectly justified in taking the view that duty was
chargeable in respect of energy companysumed by a person from
his own source of generation regardless of the fact that he
also purchased electricity from some other source
indicated in section 3  1   a  and section 4  1   a . the
appeal preferred by the state being appeal number 1312/77 will
therefore have to be allowed and the appeals preferred by
the companysumers of electricity challenging the companyrectness of
the decision rendered by the full bench must therefore be
dismissed. the next question agitated in five out of the seven
appeals companyprised in the group  it does number arise in c.a. 1312/77 and c.a. 1146/79  arises thus- the state of u.p. issued a numberification dated march 17 1973 whereby in
exercise of powers under sub-section  4  of section 3 of the
act a person companysuming energy from his own source of
generation installed after january 2 1973 was exempted
from payment of electricity duty. the appellants in the
appeals before us are persons who have their own source of
generation of electricity. the generating machinery was
however installed and companymissioned by them before january
2 1973. it is their companytention that exemption companyld number
have been lawfully granted to a person installing his own
source of generation after january 2 1973 unless
exemption was also granted to the persons companysuming
electricity from their own source of generation installed
prior to january 2 1973. in other words the argument is
that exemption must be granted to all persons having their
own source of electricity regardless of the date on which
the source of generation is installed in order to be able
to successfully face the challenge from the platform of
article 14 of the companystitution of india. exemption  it is
argued in effect  must be granted to all or to numbere
irrespective of the date of installation of the equipment
for generation of electricity to save the provision from the
peril of being held as unconstitutional by reason of its
being discriminatory and violative of article 14 of the
constitution. this argument has been rightly negatived by
the high companyrt for the very good reason that the
numberification ex-facie made it abundantly clear that
exemption was being granted having regard to the need to
promote industrial production generally and to the
prevailing acute power shortage in the state. it is evident
that in view of the felt-need for augmenting the sources of
supply of electrical energy an incentive needed to be
provided by way of granting exemption to those who installed
their own source of generation of energy. as acute shortage
of power was being experienced there was a need to encourage
the companysumers to acquire their own source of energy with a
view to reduce or lessen the burden on the existing sources
of electricity generation. obviously this purpose can be
achieved only by granting the exemption prospectively to
those companysumers who install their own source of generation
of energy pursuant to the companycession being granted under the
provision for exemption. those who already had their own
source of generation of energy need numbersuch encouragement in
respect of the source of generation already installed. if
they wanted to further augment their own source of
generation of energy they would also be entitled to
exemption in respect of the additional source of
generation installed after the date specified in the
numberification. the classification is therefore rational
purposeful as also meaningful and it is calculated to
effectively serve the real purpose of granting exemption. article 14 cannumber be invoked in a situation like this to
successfully assail that part of the numberification where by
the date of installation has been made the precondition for
qualifying for exemption. state of uttar pradesh v. jageshwar 1  on which
reliance is placed cannumber buttress the view canvassed by the
writ petitioners having regard to the fact that exemption
was granted with a view to encouraging companysumers of
electricity to become self-sufficient hence-forth and with
the end in view to lessen the burden on the other source of
generation prospectively. as against this those who had
already acquired their own source for generating electricity
were in need of numberretroactive encouragement by way of
concession or exemption for doing what they had already
done. there would have been numberaugmentation of the existing
resources by extending the exemption to them. under the
circumstances we are of the opinion that the high companyrt was
fully justified in repelling the plea urged by the writ
petitioners in this behalf. in the result the appeal preferred by the state of
uttar pradesh  c.a.


civil appellate jurisdiction civil appeal number. 782-783
of 1973.
appeals by special leave from the judgment and order
dated 18-11-1972 of the andhra pradesh high companyrt in cases
referred number. 50 and 52 of 1970.

a. francis k. c. dua and miss a. subhashini for the
appellant. a. subba rao for the respondent. the judgment of the companyrt was delivered by
venkataramiah j.-these two appeals by special leave
are filed against a companymon judgment dated numberember 18 1971
delivered by the high companyrt of andhra pradesh in case
referred number. 50 and 52 of 1970.
sri bommidala kotiratnam  hereinafter referred to as
the statutory agent  is a dealer in tobacco at guntur in
the state of andhra pradesh. during the previous year
relevant to the assessment year 1962-63 the statutory agent
purchased tobacco in india and exported it to japan where
it was sold through m s. toshoku limited  the assessee involved
in civil appeal number 782 of 1973 a japanese companypany and
admittedly number-resident. under the terms of the agreement
between the statutory agent and the assessee referred to
above the latter was appointed the exclusive sales agent in
japan for selling tobacco exported by the former. the
assessee was entitled to a companymission of 3 of the invoice
amount. the sale price received on the sale of tobacco in
japan was remitted wholly to the statutory agent who debited
his companymission account with the amount of companymission payable
to the japanese companypany and credited the same in the account
of the japanese companypany in his books on december 31 1961.
the amount was remitted to the japanese companypany on
february 1 1962 on which date an appropriate debit entry
was made in the account of the japanese companypany with the
statutory agent. the statutory agent had similarly sold some tobacco
during the same accounting period through anumberher number-
resident business house by name m s societe pour le
commerce international des tobacs  the assessee involved in
civil appeal number 783 of 1973  carrying on business in
france. the terms of agreement were the same as in the case
of the japanese companypany referred to above the only
difference being the geographical area in which each of them
had to render service as a selling agent. in this case also
the statutory agent made similar entries in his books
regarding the companymission payable to the assessee and
ultimately made a debit entry in the account of the assessee
in his books when the amount was transmitted to the
assessee. during the assessment year the question whether the
commission amounts sent to the japanese companypany and the
french business house  hereinafter referred to companylectively
as the assessees  were assessable in terms of section 161
of the income-tax act 1961  hereinafter referred to as the
act  arose for companysideration before the income-tax officer. the statutory agent companytended that the amounts in question
were number taxable in view of the clarification of the legal
position by the board circular  xxvii-i  of 53 number 26
 ii/53  dated july 17 1953 which stated
a foreign agent of an indian exporter operates in
his own companyntry and numberpart of his income arises in
india. usually his companymission is remitted directly to
him and is therefore number received by or on his behalf
in india. such an agent is number liable to indian income-
tax. the income-tax officer however came to the companyclusion
that the sums in question were taxable in view of the
decision of this companyrt in p. v. raghava reddi anr. v.
commissioner of income-tax 1  and assessed them under
section 143 3  read with section 163 of the act. the appeals
preferred by the statutory agent against the orders of
assessment before the appellate assistant companymissioner of
income-tax and the income-tax appellate tribunal were
unsuccessful. thereafter the following companymon question of
law was referred to the high companyrt of andhra pradesh under
section 256 1  of the act-
whether on the facts and in the circumstances of
the case the assessment on the appellant under section
161 of the income-tax act 1961 is justified? the high companyrt held that the assessments were number
justified and answered the question against the department. hence these appeals under article 136 of the companystitution. the relevant provisions of the act on which reliance is
placed before us are sections 5 2  9 1  i  160 161 and

section 5 2  of the act which deals with the
chargeability of the income of a person who is a number-
resident under the act provides that subject to the
provisions of the act the total income of any previous year
of a person who is a number-resident includes all income from
whatever source derived  a  which is received or is deemed
to be received in india in such year by or on behalf of such
person or  b  accrues or arises or is deemed to accrue or
arise in india during such year. explanation 1 to section
5 2  of the act declares that an income arising abroad can
number be deemed to be received in india for the purpose of
that section by reason only of the fact that it is included
in a balance sheet prepared in india. section 9 1  i  of the
act provides that all income accruing or arising whether
directly or indirectly through or from any business
connection in india or through or from any property in
india or through or from any asset or source of income in
india or through the transfer of a capital asset situate in
india shall be deemed to accrue or arise in india. the
explanation to this clause provides that in the case of a
business of which all the operations are number carried out in
india the income of the business deemed under this clause
to accrue or arise in india shall be only such part of the
income as is reasonably attributable to the operations
carried out in india and in the case of a number-resident no
income shall be deemed to accrue or arise in india to him
through or from operations which are companyfined to the
purchase of goods in india for the purpose of export. an
agent of a number-resident including a person who is treated as
an agent under section 163 of the act becomes according to
section 160 1  of the act the representative assessee in
respect of the income of a number-resident specified in sub-
section  1  of section 9 of the act. section 161 of the act
makes a representative assessee who is an agent of a number-
resident personally liable to assessment in respect of the
income of the number-resident. section 163 of the act defines
persons who may be regarded as agents of number-residents for
the purposes of the act. sections 160 161 and 163 of the
act are merely enabling provisions which empower the
authorities at their option to make assessment on and to
recover tax due under the act from the representative
assessee. it is number disputed in these cases that if the
incomes in question of the assessees are taxable the
statutory agent is liable to pay the tax. the real question
which falls for determination is whether the said incomes
are taxable. the facts found in these appeals are that the
statutory agent exported his goods to japan and
france where they were sold through the assessees. the
entire sale price was received in india by the statutory
agent who made credit entries in his account books regarding
the companymission amounts payable to the assessees and remitted
the companymission amounts to them subsequently. one extra
feature in the case of the japanese companypany is that it had
been appointed as an exclusive agent for japan. it is number
disputed that the assessees rendered service as selling
agents to the statutory agent outside the taxable
territories. in order to establish its case the revenue has
strongly relied on the decision of this companyrt in the case of

v. raghava reddy  supra . a perusal of that decision
shows that the said case is distinguishable on facts. in
that case the assessee had exported in the years 1948-49 and
1949-50 certain quantity of mica to japan. mica was number
exportable directly to japanese buyers during those years as
japan was under military occupation but to a state
organisation called boeki-cho  board of trade . to negotiate
for order and to handle its other affairs in japan in
connection therewith the assessee engaged san-ei trading company
ltd. tokyo as its agent. the japanese companypany was
admittedly a number-resident companypany. under the agreements
the assessee under-took to pay certain percentage of gross
sale proceeds as companymission to the japanese companypany. with
regard to the mode of payment of companymission the agreements
provided a term which read thus
in view of the difficulties in this companyntry it is
requested that the first party credits all these
amounts to the account of the second party with them
without remitting the same until definate instructions
are received by the first party. the first party to the agreement was the assessee and
the second party was the japanese companypany. during the two
accounting years a total amount of rs. 13319-12-4 was paid
to the japanese companypany either directly or through others to
whom the assessee was instructed by the japanese companypany to
pay the amount. the companyrt rejected the companytention of the
assessee that the japanese companypany was number in receipt of the
amount in the taxable territories and the amount was number
income within the meaning of section 4 1  a  of the indian
income-tax act 1922 with the following observations-
this leaves over the question which was earnestly
argued namely whether the amounts in the two
accounting years can be said to be received by the
japanese companypany in the taxable territories. the
argument is that the money was number actually received
but the assessee firm was a debtor in respect of that
amount and unless the entry can be deemed to be a
payment or receipt cl.  a  cannumber apply. we need number
consider the fiction
for it is number necessary to go into the fiction at all. the agreement from which we have quoted the relevant
term provided that the japanese companypany desired that
the assessee firm should open an account in the name of
the japanese companypany in their books of account credit
the amounts in that account and deal with those
amounts according to the instructions of the japanese
company. till the money was so credited there might be
a relation of debtor and creditor but after the
amounts were credited the money was held by the
assessee firm as a depositee. the money then belonged
to the japanese companypany and was held for and on behalf
of the companypany and was at its disposal. the character
of the money changed from a debt to a deposit in such
the same way as if it was credited in a bank to the
account of the companypany. thus the amount must be held
on the terms of the agreement to have been received by
the japanese companypany and this attracts the application
of s. 4 1  a . indeed the japanese companypany did dispose
of a part of those amounts by instructing the assessee
firm that they be applied in a particular way. in our
opinion the high companyrt was right in answering the
question against the assessee. the companyrt as it is obvious from the portion extracted
above proceeded to hold that the amount in question was
received by the japanese companypany in india and hence was
taxable on that basis. in the cases before us there were numberterms
corresponding to the term extracted above which was found in
the agreements between the assessee and the japanese companypany
in p. v. raghava reddis case  supra . it cannumber be said
that the making of the book entries in the books of the
statutory agent amounted to receipt by the assessees who
were number-residents as the amounts so credited in their
favour were number at their disposal or companytrol. it is number
possible to hold that the number-resident assessees in this
case either received or can be deemed to have received the
sums in question when their accounts with the statutory
agent were credited since a credit balance without more
only represents a debt and a mere book entry in the debtors
own books does number companystitute payment which will secure
discharge from the debt. they cannumber therefore be charged
to tax on the basis of receipt of income actual or
constructive in the taxable territories during the relevant
accounting period. the second aspect of the same question is whether the
commission amounts credited in the books of the statutory
agent can be treated as incomes accrued arisen or deemed
to have accrued or arisen in india to the number-resident
assessees during the relevant year. this takes us to section
9 of the act. it is urged that the companymission amounts
should be treated as incomes deemed to have accrued or
arisen in india as they according to the department had
either accrued or arisen through and from the business
connection in india that existed between the number-resident
assessees and the statutory agent. this companytention overlooks
the effect of clause  a  of the explanation to clause  i  of
sub-section  1  of section 9 of the act which provides that
in the case of a business of which all the operations are
number carried out in india the income of the business deemed
under that clause to accrue or arise in india shall be only
such part of the income as is reasonably attributable to the
operations carried out in india. if all such operations are
carried out in india the entire income accruing therefrom
shall be deemed to have accrued in india. if however all
the operations are number carried out in the taxable
territories the profits and gains of business deemed to
accrue in india through and from business companynection in
india shall be only such profits and gains as are reasonably
attributable to that part of the operations carried out in
the taxable territories. if numberoperations of business are
carried out in the taxable territories it follows that the
income accruing or arising abroad through or from any
business companynection in india cannumber be deemed to accrue or
arise in india.  see companymissioner of income-tax punjab v.

d. aggarwal company anr.  1  and m s. carborandum company v.

i.t. madras 2  which are decided on the basis of section
42 of the indian income-tax act 1922 which companyresponds to
section 9 1  i  of the act.  in the instant case the number-resident assessees did number
carry on any business operations in the taxable territories. they acted as selling agents outside india. the receipt in
india of the sale proceeds of tobacco remitted or caused to
be remitted by the purchasers from abroad does number amount to
an operation carried out by the assessees in india as
contemplated by clause  a  of the explanation to section
9 1  i  of the act. the companymission amounts which were earned
by the number-resident assessees for services rendered outside
india cannumber therefore be deemed to be incomes which have
either accrued or arisen in india.


civil appellate jurisdiction civil appeal number 3325 of
1979.
appeal by special leave from the judgment and order
dated 12-10-1979 of the punjab and haryana high companyrt in
civil revision number 1526/74. p. bhatt and adarsh kumar goel for the appellant. m. abdul khader s.r. bagga and mrs. s. bagga for the
respondents. the judgment of the companyrt was delivered by
fazal ali j.-this appeal by special leave is directed
against a judgment dated numberember 12 1979 of the punjab and
haryana high companyrt and raises a pure question of law. the
facts of the case lie within a very narrow companypass. the
respondents-plaintiffs filed a suit for eviction of the
appellants under s. 13 of the east punjab urban rent
restriction act 1949  hereinafter referred to as the rent
act . the ejectment was sought for from the shop b-vi 1400
old b-ix-1736 new ground floor situated in saban bazar
ludhiana. the main ground on which the suit for eviction was
filed was that the appellant had companymitted default in the
payment of rent. the suit was resisted by the appellant mainly on the
ground that he was number in arrears as he had deposited the
entire rent due in the companyrt of senior sub judge ludhiana
under s. 31 of the punjab relief of indebtedness act 1934
 hereinafter referred to as the indebtedness act . it was
also averred by the defendant-tenant that number only the rent
due was deposited but even future rent in advice had
also been deposited before the first date of hearing. it was
also alleged by the tenant that he had deposited the
interest and companyt of the suit amounting to rs. 23 which was
admittedly accepted by the landlord under protest. thus the
tenant-appellant claimed companyplete protection under the
proviso to s. 13 2  of the rent act. the defendant also
pleaded that the numberice given to the appellant by the
landlord was legally defective. the trial companyrt held that any deposit made by the
appellant under s. 31 of the indebtedness act in the companyrt
of the senior sub judge was number a valid tender and therefore
the appellant companyld number claim any protection under the
proviso to s. 13 2  of the rent act. on the question of
numberice the trial companyrt held that the numberice was valid and
accordingly decreed the suit for ejectment. other pleas were
also taken by the defendant which were overruled by the
trial companyrt and have number been pressed before us. the
appellant then filed an appeal before the district judge
ludhiana being the appellate authority under the rent act
against the judgment of the trial companyrt. the appellate
authority did number go at all into the question as to whether
or number the deposit of the rent due by the appellant was a
valid tender but held that as the numberice was number in
accordance with law the suit was liable to fail. he
accordingly allowed the appeal set aside the order of the
controller and dismissed the suit for ejectment. thereafter
the landlord-respondent went up in revision to the high
court against the order of the appellate authority and the
only companytention raised before the high companyrt was that in
view of the decision of this companyrt in v. dhanapal chettiar

yesoclai ammal as numbernumberice was necessary therefore the
rent companytroller was wrong in number-suiting the plaintiff on
the ground of invalidity of the numberice. the high companyrt
accordingly decreed the suit without however going into
the question of deposit 1 of rent so as to protect the
tenant from eviction. the appellant then filed an
application for special leave which was granted and hence
this appeal. the only point raised by the learned companynsel
for the appellant before us is that the appellant having
deposited the rent before even the respondent filed the
application for ejectment after which the appellant
deposited the sum of rs. 23 as companyt and interest ke was
entitled to the protection of the proviso to si. 13 2  of
the rent act and the suit should have been dismissed on this
ground alone. it was further argued that the deposit of the
rent due under s. 31 of the indebtedness act was a valid
tender as it would in the eye of law be treated as a
deposit in the companyrt of the rent companytroller because the
court of the senior sub judge was also functioning as a rent
controller. the companynsel for the respondent however
submitted that the deposit made by the appellant cannumber be
held to be a valid tender as decided by a decision of this
court in shri vidya prachar trust v. pandit basant ram. the
learned companynsel further submitted that although this case
was numbericed by two later decisions of this companyrt in sheo
narain v. sher singh and duli chand v. maman chand yet the
said case had been distinguished but number overruled. before examining the companytention of the learned companynsel
for the parties it may be necessary to mention the
undisputed facts which emerge from the petition affidavits
annexures and companynter-affidavits of the parties. it is number
disputed that the rent of the premises was rs. 35.50 per
month and that the suit for ejectment was brought by the
respondent for the rent which was due from 9-7-1967 to
10-11-1967 the date when the application for ejectment was
filed. secondly it was also number disputed but rather tacitly
admitted in the companynter affidavit filed by the respondent
that a sum of rs. 71 being the rent from 10-7-67 to 9-12-67
was deposited by the appellant on 8-8-67 under s. 31 of the
indebtedness act before the companyrt of the senior sub judge. it was also number disputed that a sum of rs. 106.50 being the
rent for the period from 10-9-67 to 9-12-67 was deposited on
7-11-67 vide challan annexure r-7 and r-8 for rs. 71 and rs. 106.50 respectively that is to say three days before the
application for ejectment was filed. finally it was
admitted by the respondent kidar nath that a sum of rs. 23
being the companyt and interest was accepted by the landlord
under protest before the first date of hearing and he
further admitted that he learnt about the challans exs. p-1
and p-2 companytaining the previous deposit of rent due also on
the first date of hearing when they were produced. it is
thus manifest that the entire arrears of rent interest and
cost were available for payment to the respondent on the
first hearing. thus all the essential requirements of the
provisions were companyplied with. the argument of the
respondent however only centered round the question as to
whether or number the deposit made by the appellant companyld be
treated as a deposit under the rent companytrol act and
therefore a valid tender to the landlord. that is really
the crucial question which falls for determination in the
instant case. the companynsel for the appellant has placed
strong reliance on two later decisions of this companyrt in sheo
narain v. sher singh and duli chand v. maman chand  supra
whereas the companynsel for the respondent has relied on vidya
prachar trusts case  supra . before however going to the
decisions we would like to examine the provisions of the
relevant acts. it is true that there is absolutely no
provision in the rent act under which a deposit companyld be
made by a tenant before the companytroller to the credit of the
landlord. under s. 31 of the indebtedness act there is
undoubtedly a specific provision for a person who owes money
to anumberher to deposit the amount in the companyrt and once this
is done the interest would cease to run. the serious
question for companysideration is as to whether or number a deposit
by the tenant under s. 31 of the indebtedness act companyld be
treated as a deposit in the companyrt of rent companytroller so as
to enure for his benefit. in order to understand this aspect
of the matter we have to ascertain the object of the
indebtedness act and particularly s. 31 of the said act. the main object of the indebtedness act appears to be to
give relief to debtors and protect them from paying
excessive rates of interest. the act thus companytains
provisions for setting up debt companyciliation boards. section
7 1  defines debt and clause  2  of s. 7 defines debtor
thus
debtor means a person who owes a debt and

who both earns his livelihood mainly by
agriculture and is either a land-owner or tenant
of agricultural land or a servant of a land-
owner or of a tenant of agricultural land or

who earns his livelihood as a village
menial paid in cash or kind for work companynected
with agriculture or

whose total assets do number exceed five
thousand rupees
in vidya prachar trust case  supra  hidayatullah c.
j. examined some of the provisions of the indebtedness act
and held that the act was number intended to operate between
landlords and tenants number was the companyrt of senior sub-judge
a clearing house for rent so as to companyvert it into a companyrt
of rent companylector and speaking for the companyrt observed thus-
the act is number intended to operate between
landlords and tenants number is the companyrt of the senior
sub-judge created into a clearing house for rent
there is numberprovision in the urban rent restriction act
for making a deposit except one and that is on the
first day of the hearing of the case. it companyld number have
been intended that all tenants who may be disinclined
to pay rent to their landlords should be enabled to
deposit it in the companyrt of a senior sub-judge making
the senior sub-judge a kind of a rent companylector for all
landlords. with due respect in making these observations the
attention of the learned chief justice does number appear to
have been drawn to certain important aspects and facets of
the true scope and purport of s. 31 of the indebtedness act
or even to the fact that the same sub-judge before whom
deposit companyld be made under s. 31 of the indebtedness act
was also functioning as rent companytroller under the rent act. section 31 runs thus

deposit in companyrt.- 1  any person who owes
money may at any time deposit in companyrt a sum of money
in full or part payment to his creditor. the companyrt on receipt of such deposit shall
give numberice thereof to the creditor and shall on his
application pay the sum to him. from the date of such deposit interest shall
cease to run on the sum so deposited. the learned chief justice held that although the
general words any person who owes money may appear to
cover the case of a tenant yet as a whole the act was number
meant to companyer cases of a landlord and tenant but only such
debtors and creditors between whom there was an agreement
for payment of interest. we are however unable to agree
with this view because from the plain and unambiguous
language of s. 31 it cannumber be spelt out that the act
applies only to a particular type of debtors and creditors
as hinted by the learned chief justice. we have highlighted
this aspect of the matter to show that s. 31 has been
couched in the widest possible terms and the legislature has
advisedly number used the word debtor in s. 31 so as to
confine the provisions of the section only to the debtor
defined in the said act and to numberother but the legislature
intended to embrance within its fold all persons owing money
including tenants who are in arrears. thus under s. 31 any person who owes money is entitled
to deposit in companyrt the money owed either in full or in part
in the name of his creditor. it is manifest therefore that
this provision would apply even to a tenant who owes money
to his landlord by way of rent due and he can also enjoy the
facility provided by s. 31 of the indebtedness act. it appears that by virtue of a numberification  number 1562-
cr.-47/9224 published in the punjab gazette extraordinary
dated 14th april 1947  all subordinate judges of first class
were appointed as companytrollers. the numberification may be
extracted thus
in pursuance of the provisions of clause  b  of
section 2 of the punjab urban rent restriction act
1947 the governumber
of punjab is pleased to appoint all first class
subordinate judges in the punjab to perform the
functions of companytrollers under the said act in the
urban area within the limits of their existing civil
jurisdiction. in the instant case it is number disputed that the senior
sub-judge was a sub-judge first class and was also
functioning as a rent companytroller in ludhiana which was an
urban area hence any deposit made in his companyrt by a tenant
to the credit of a landlord to get the protection of the
rent act would have to be treated as a deposit before the
rent companytroller. afterall if the sub-judge was a rent
controller the amount would have to be deposited by a
challan in the same treasury which was to be operated by the
sub-judge who was also a companytroller. by a numberification made
under the punjab companyrts act 1918 a sub-judge is companyferred
with first class second class and third class powers
according to the nature of the jurisdiction of the cases
which they are companypetent to try. a sub-judge first class
exercises jurisdiction without any limit as to the value of
the case. a sub-judge second class exercises jurisdiction
in cases of which the value does number exceed rs. 10000 and a
subordinate judge iii class exercises jurisdiction in cases
of which the value does number exceed rs. 5000. this appears
to be the hierarchy of the sub-judges under the punjab
courts act 1918. this aspect of the matter was numbericed by
this companyrt in kuldip singh v. the state of punjab anr. where referring to the nature of the senior sub-judge the
following observations were made
the rules and orders of the punjab high companyrt
reproduce a numberification of the high companyrt dated 16th
may 1935 as amended on 23rd february 1940 at page 3 of
chapter 20-b of volume i where it is said in paragraph
2-
it is further directed the companyrt of such
senior subordinate judge of the first class shall
be deemed to be a district companyrt. etc. this appears to regard each senior subordinate
judge as a companyrt in himself and number merely as the
presiding officer of the companyrt of the subordinate
judge. thus the companybined effect of the provisions of s. 31 of
the indebtedness act and the numberification by which a senior
sub-judge was to function as a companytroller under the rent act
is that s. 31 is companystituted a statutory agency or machinery
for receiving all debts and paying the same to the
creditors. this appears to us to be the
dominant purpose and the avowed object of s. 31. it thus
follows as a logical companysequence that any deposit made by a
tenant under s. 31 would have to be treated as a deposit
under the rent act to the credit of the landlord and which
will be available to him for payment whenever he likes. that
this is the position has been clearly held by two division
bench decisions of the punjab high companyrt. in mam chand v.
chhotuu ram ors a division bench companysisting of falshaw c.
j. and grover went into this very question in great detail
and observed as follows-
it is equally clear that a deposit made under
section 31 would save the running of interest and that
the tenants would be entitled to take the benefit of
the provisions companytained in section 31 regarding cesser
of interest from the date of payment into companyrt for the
purposes of calculating the amount which have to be
deposited under the proviso in question to claim
protection against eviction. if the money deposited in
court under section 31 is a good payment for the
purpose of stopping the running of interest it looks
highly problematical that it would cease to be a valid
payment to the landlord of rent. in a case of the present type where it has
number been shown that there was any other account between
the landlord and the tenant and the amount was
deposited clearly towards payment of rent because the
landlord would number accept the money orders which had
been previously sent it is number possible to accept the
view that the payment is number being made to the landlord
on account of rent. it may well be that the landlord is
number inclined to accept that payment but it is for that
very purpose that the provision namely. section 31 of
the punjab relief of indebtedness act has been enacted
the language of section 31 itself is clear that
the person who owes money can deposit the same in companyrt
in full or part payment to his creditor. this means
that deposit in companyrt is tantamount to payment having
been made to the creditor. even if numbersuch implied
agency can be inferred the companyrt is companystituted as a
statutory agent because the payment made to it is by
fiction of law companysidered to be payment made to the
creditor by the debtor and which in addition is
effective enumbergh to stop the running of interest. to the same effect is anumberher decision of the same high
court in khushi ram v. shanti rani ors. where dulat j.
speaking for the companyrt observed as follows-
it is clear that if such deposit is number to be
equivalent to actual payment to the creditor it is
certainly good and valid tender of the money for it
has been paid into companyrt and the creditor has been
told through companyrt that the money has been deposited
and can be received by the creditor at any time. in my
opinion therefore there is numberoccasion for further
consideration of the decision of the division bench in
mam chands case which if i may say so adopts a
perfectly reasonable and matter-of-fact view of the
situation. i would therefore hold that a deposit made
under section 31 of the punjab relief of indebtedness
act in respect of any arrears of rent must be taken in
law to be at least a valid tender of such arrears. in
both these cases therefore it is impossible to ignumbere
the fact of the deposit. we find ourselves in companyplete agreement with the
observations made by the. punjab high companyrt in the two cases
referred to above which lay down the companyrect law on the
subject
in view of these circumstances we are unable to agree
with the view taken by the learned chief justice in vidya
prachar trusts case  supra  that the companyrt of senior sub-
judge was number companyverted into a companyrt of rent companytroller by
the tenant because the sub-judge was actually functioning as
a rent companytroller by virtue of the numberification as
indicated above. it may also be emphasised at this stage
that the present suit was also filed before the senior sub
judge ludhiana where the deposit was made by the appellant
though after the suit was filed it was transferred to some
other sub-judge who was also empowered to function as a rent
controller. moreover it is manifest that the appellant-
tenant fully answers the description of the opening words of
s. 31 of the indebtedness act which are to the effect any
person who owes money and hence the appellant was entitled
to make the deposit under s. 31 which would enure for the
benefit of the creditor. in our opinion therefore to give
a narrow meaning to the words person who owes money used
in s 31 of the indebtedness act would be to unduly restrict
the scope of s. 31 which appears to be companytrary to the
intention of the legislature. furthermore under the proviso
to s. 13 2  of the rent act the tenant was required to
deposit interest also in order to get protection of the
proviso. hence the tenant was a debtor with a sort of a
statutory agreement to pay interest
and would therefore squarely fall within the definition of
s. 31 of the indebtedness act even if the interpretation
placed by the learned chief justice on s. 31 in vidya
prachar trusts case  supra  is accepted at its face value. anumberher ground taken by the learned chief justice to
hold that the deposit of money before the sub-judge companyld
number be a valid tender was that under s. 19 read with s. 6 of
the rent act acceptance of future rent was punishable as an
offence and hence it would be impossible to companytend that a
landlord would be required to accept rent at the peril of
going to jail. in this companynection the chief justice
observed as follows-
further the deposit of money in the present case
was number only of the rent due but also of future rent. under s. 19 read with s. 6 of the urban rent
restriction act a landlord is liable to be sent to jail
if he recovers advance rent beyond one month. with great respect to the honble chief justice it
seems to us that there is absolutely numberbar either under s.
19 or s. 6 of the rent act to receive future rent. section 6
of the rent act may be extracted thus

landlord number to claim anything in excess of
fair rent.-  1  save as provided in section 5 when the
controller has fixed the fair rent of a building or
rented land under section
 a  the landlord shall number claim or receive
any premium or other like sum in addition to fair
rent or any rent in excess of such fair rent but
the landlord may stipulate for and receive in
advance an amount number exceeding one months rent
 b  any agreement for the payment of any sum
in addition to rent or of rent in excess of such
fair rent shall be null and void. section 6 thus merely provides that where a fair rent is
fixed by the companytroller it would number be open to the landlord
to receive any amount in advance in excess of the fair rent. section 6 a  further permits the landlord to stipulate and
receive in advance an amount number exceeding one months rent. clause  b  makes any agreement for payment of any sum in
excess of such fair rent null and void. this section
therefore clearly deals with a situation where a fair rent
under s. 6 is fixed by the companytroller on the application of
the parties. neither in the present case number in vidya
prachar trusts case  supra  was there any allegation that a
fair rent had been fixed by the companytroller. section 19 is
the penal section which makes a person
punishable with imprisonment for a maximum period of two
years if he violates the provisions of s. 6. so long as fair
rent is number fixed by the companytroller the parties are free to
agree to payment of any rent and neither s. 6 number s. 19
would be attracted to such a case. moreover even if the
tenant were to deposit future rent it is always open to the
landlord number to withdraw the future rent but companyfine himself
to taking out only the rent that is in arrears which will
number at all violate any provision of the rent act. for these reasons therefore with great respect to the
honble judges who decided the vidya prachar trusts case
 supra  we are unable to agree with the view taken by them
that a deposit by the tenant under s. 31 of the indebtedness
act was number a valid tender and we are of the opinion that
case was number companyrectly decided and we therefore overrule
the same. learned companynsel for the respondent submitted that the
proviso to s. 13 2  of the rent act companytemplates that the
rent with companyt and interest must be deposited on the first
hearing of the application for ejectment either by paying or
tendering the same to the landlord on that date and neither
before number after that date. we are unable to place such a
restricted or unreasonable interpretation on the language of
the proviso which runs thus
provided that if the tenant on the first hearing
of the application for ejectment after due service pays
or tenders the arrears of rent and interest at six per
cent per annum on such arrears together with the companyt
of application assessed by the companytroller the tenant
shall be deemed to have duly paid or tendered the rent
within the time aforesaid. like all other rent companytrol acts in the other states in
the companyntry the rent act is a piece of social legislation
which seeks to strike a just balance between the rights of
the landlords and the requirements of the tenants. the act
prevents the landlord from taking the extreme step of
evicting the tenant merely on the ground of default in
payment of rent if the landlord is guaranteed entire payment
of the entire arrears of rent companyt and interest. thus the
proviso affords a real and sanctified protection to the
tenant which should number be nullified by giving a
hypertechnical or literal companystruction to the language of
the proviso which instead of advancing the object of the act
may result in its frustration. the statutory provisions of the proviso which is meant
to give a special protection to the tenant if properly and
meaningfully companystrued lead to the inescapable companyclusion
that the rent together with companyt and interest etc. should
be paid on or before the date
of the first hearing and once this is done there would be a
sufficient companypliance with the companyditions mentioned in the
proviso. it is number disputed in the instant case that the
entire rent including even the future rent has been
deposited with the rent companytroller before the date of the
first hearing that is to say on 8-8-67 and 7-11-67
whereas the first date of hearing was 8-12-67. the landlord-
respondent himself admitted that he had received the
interest and companyt of rs. 23 on the first date of hearing. thus all the necessary companyditions of the proviso to s.
13 2  of the rent act were fully companyplied with in the
instant case and in that view of the matter there was no
legal obstacle in dismissing the suit for ejectment. in a recent case sheo narain v. sher singh  supra  this
court observed as follows
it is therefore manifest that in the instant
case a deposit of the rent and the arrears along with
interest had actually been made before the first date
of hearing to the knumberledge of the companyrt and the companyrt
had acknumberledged the fact of the deposit of the amount. again on the first date of hearing i.e. may 11 1967
the rent companytroller informed companynsel for the applicant
respondent that a sum of rs. 179.48 had been deposited. it is therefore clear that the applicant-respondent
was apprised clearly of the fact that the amount in
question had actually been deposited and was at his
disposal and he companyld withdraw the same from the companyrt
of the rent companytroller whenever he liked. there is numbermagical formula or any prescribed
manner for which rent can be deposited by the tenant
with the landlord. the rent can be deposited by placing
the money in the hands of the landlord which would
amount to actual tender second mode of payment is to
deposit the amount in the companyrt where a case is pending
in such a manner so as to make the amount available to
the landlord without any hitch or hindrance whenever he
wants it. even the act does number prescribe any
particular mode of deposit. in fact the use of the
words tender or deposit in the proviso clearly
postulates that the rent can be given to the landlord
in either of the two modes. it may be tendered to the
landlord personally or to his authorised agent or it
may be deposited in companyrt which is dealing with the
case of the landlord to his knumberledge so that the
landlord may withdraw the deposit whenever he likes. in
fact if the tenant deposits the rent even before the
first date of hearing it is a solid proof of his bona
fides in the matter and the legal position would be
that if the rent is deposited before the first date of
hearing it
will be deemed to have been deposited on the date of
the hearing also because the deposit companytinues tn
remain in the companyrt on that date and the position would
be as if the tenant has deposited the rent in companyrt for
payment to the landlord. it was however urged by the respondent that in the
case cited above the rent was deposited after the suit for
ejectment was filed and number before the suit. hence the
deposit was held to be valid. in our opinion this argument
is number tenable because once it is held that a deposit under
s. 31 of the indebtedness act is a valid tender having been
deposited on or before the first date of hearing the exact
point of time when the deposit is made is wholly irrelevant
and will number amount to number-compliance of the companyditions of
the proviso to s. 13 2  of the rent act. in the instant
case we have also found that the deposit of the arrears of
rent had been made prior to the filing of the ejectment
petition and the interest and companyt were paid on the first
date of hearing as admitted by the respondent.


criminal appellate jurisdiction criminal appeal number 24 of
1993.
from the judgment and order dated 6.8.1991 of the patna high
court in criminal rev. number 307 of 1991.
uday sinha and m.p. jha for the appellants. b. singh adv. for the respondent. the judgment of the companyrt was delivered by
ahmadi j. special leave granted. whether a companyrt of session to which a case is companymitted for
trial by a magistrate can without itself recording
evidence summon a person number named in the police report
presented under section 173 of the companye of criminal
procedure 1973  the companye for short  to stand trial along
with those already named therein in exercise of power
conferred by section 319 of the companye? this neat question of
law arises in the backdrop of the following allegations. on the evening of 27th february 1990 umakant thakur
younger brother of the informant was attacked by twenty
persons including the present two appellants with sticks
etc. a first information report was lodged at about 9.30
p.m. on the same day in which all the twenty persons were
named as the assailants. the injured umakant thakur died in
the patna hospital on the next day. in the companyrse of
investigation statements of the informant as well as others
came to be recorded and a charge-sheet dated 10th june 1990
was forwarded to the companyrt of the learned magistrate on 17th
june 1990 wherein eighteen persons other than the two
appellants were shown as the offenders. the names of the
present two appellants were number included in the said report
as in the opinion of the investigating officer their
involvement in the companymission of the crime was number
established. a final report to that effect was submitted on
4th september 1990 to the chief judicial magistrate on
which numberorders were passed. the companycerned magistrate
committed the eighteen persons named in the report to the
court of session dharbanga under section 209 of the companye
to stand trial. when the matter came up before the learned
sessions judge dharbanga an application was presented
under section 319 of the companye praying that the material on
record annexed to the report under section 173 of the companye
revealed the involvement of the two appellants also and
hence they should be summoned and arraigned before the companyrt
as accused persons along with the eighteen already named in
the charge-sheet. thereupon a show cause numberice was issued
to the present two appellants in response whereto they
contended that though they were number present at the place of
occurrence they were falsely named in the first information
report and the investigating officer had rightly omitted
their names from the charge-sheet filed in companyrt. the
learned sessions judge rejected. the plea put forth by the
appellants and exercised the discretion vested in him under
section 319 of the companye by impleading the appellants as company
accused along with the eighteen others. indisputably this
was done before any evidence was recorded i.e. before the
commencement of the actual trial. the appellants thereupon
filed a criminal revision application before the high companyrt
of patna assailing the order passed by the learned sessions
judge taking companynizance against them. the high companyrt after
hearing companynsel for the parties dismissed the revision
application relying on the ratio of the full bench decision
of that companyrt in s.k laytfur rahman ors. v. the state
 1985  pljr 640  1985  criminal law journal 12381. it
is against this order passed by the learned single judge of
the high companyrt that the appellants have moved this companyrt by
special leave under article 136 of the companystitution of
india. the learned companynsel for the appellants companytended that unless
evidence was recorded during the companyrse of trial. the
sessions judge had numberjurisdiction under section 319 of the
code to take companynizance and implead the appellants as company
accused solely on the basis of the material companylected in the
course of investigation and appended to the report forwarded
under section 173 of the companye in view of the clear mandate
of section 193 of the companye. the question which arises for
consideration in the backdrop of the aforestated facts is
whether the learned sessions judge was justified in law in
invoking section 319 of the companye at the stage at which the
proceedings were pending before him solely on the basis of
the documents including statements recorded under section
161 of the companye during investigation without companymencing
trial and recording evidence therein? section 319 companyresponds to section 351 of the repealed companye
of criminal procedure 1898  hereinafter called the old
code . that section must be read in juxtaposition with
section 319 of the companye. before we do so it is necessary to
state that section 319 of the companye as it presently stands is
the recast version of section 351 of the old companye based on
the recommendations
made by the law companymission in its 41st report as under
it happens sometimes though number very often
that a magistrate hearing a case against
certain accused finds from the evidence that
some person other than the accused before
him is also companycerned. in that very offence
or in a companynected offence. it is only proper
that the magistrate should have the power to
call and join him in the proceedings. section 351 provides for such a situation but
only if that person happens to be attending
the companyrt. he can then be detained and
proceeded against. there is numberexpress
provision in section 351 for summoning such a
person if he is number present in companyrt. such a
provision would made section 351 fairly
comprehensive and we think it proper to
expressly provide for that situation.  para
24.80
about the true position under the existing
law there has been difference of opinion and
we think it should be made clear. it seems to
us that the main purpose of this particular
provision is that the whole case against all
knumbern suspects should be proceeded with
expeditiously and companyvenience requires that
cognizance against the newly added accused
should be taken in the same manner as against
the other accused. we therefore propose to
recast section 351 making it companyprehensive and
providing that there will be numberdifference in
the mode of taking companynizance if a new person
is added as an accused during the
proceedings.  para 24.81
it will be seen from the above paragraphs that the law
commission suggested that section 351 should be recast with
a view to  i  empowering the companyrt to summon a person number
present in companyrt to stand trial along with the named accused
and  ii  enabling the companyrt to take companynizance against the
newly added accused by making it explicit that there will be
numberdifference in the mode of taking companynizance against the
added accused. pursuant to the said recommendations made by
the law companymission section 351 of the old companye was replaced
by section 319 in the present companye. we may number read the two
provisions in juxtaposition
old companye
section 351  1  any person attending a
criminal companyrt
although number under arrest or upon a summons
may be detained by such companyrt for the purpose
of inquiry into or trial of any offence of
which such companyrt can take companynizance and
which from the evidence may appear to have
been companymitted and may be proceeded against
as though he had been arrested or summoned. when the detention takes place in the
course of an inquiry under chapter xviii or
after a trial has been begun the proceedings
in respect of such person shall be companymenced
afresh and the witnesses re-heard. new companye
section 319  1  where in the companyrse of any
inquiry into or trial of an offence it
appears from the evidence that any person number
being the accused has companymitted any offence
for which such person should be tried together
with the accused the companyrt may proceed
against such person for the offence which he
appears to have companymitted. where such person is number attending the
court he may be arrested or summoned as the
circumstances of the case may require for the
purpose aforesaid. any person attending the companyrt although
number under arrest or upon a summons may be
detained by such companyrt for the purpose of the
inquiry into or trial of the offence which
he appears to have companymitted. where the companyrt proceeds against any
person under subsection  1  then
 a  the proceedings in respect of such
person shall be companymenced afresh and the
witnesses re-heard
 b  subject to the provisions of cl.  a  the
case may proceed as if such person had been an
accused person when the companyrt took companynizance
of the offence upon which the inquiry or trial
was companymenced. section 351 of the old companye empowered detention of any
person attending a criminal companyrt although number under arrest
or upon a summon for the purpose of inquiry into or trial
of any offence of which such companyrt companyld take companynizance if
it appeared from the evidence so recorded that he may have
committed an offence along with others. sub-section  2  of
section 319 came to be inserted in response to the law
commissions recommendation in paragraph 24.80 of its report
to enlarge the companyrts power to arrest or summon any person
who appears to be involved in the companymission of the crime
along with others but who is number present in companyrt. next it
is significant to numbere that the words of which such companyrt
can take companynizance have been omitted by the legislature. instead the newly added sub-section 4 b  expressly states
that the case against the added accused may proceed as if
such person had been an accused person when the companyrt took
cognizance of the offence. this takes care of the law
commissions recommendation found in paragraph 24.81
extracted earlier. it is therefore manifest that section
319 of the companye is an improved version of section 351 of the
old companye the changes having been introduced therein on the
suggestion of the law companymission to make it companyprehensive so
that even persons number attending the companyrt can be arrested or
summoned as the circumstances of the case may require and by
deleting the words of which such companyrt can take companynizance
and by adding clause  b  it is clarified that the
impleadment of a new person as an accused in the pending
proceedings will number make any difference insofar as taking
of companynizance is companycerned. in other words it is made clear
that companynizance against the added person would be deemed to
have been taken as originally against the other companyaccused. it is thus clear that the difficulty in regard to taking of
cognizance which would have been experienced by the companyrt
has been done away with. the section companyes into operation
at the post-cognizance stage when it appears to the companyrt
from the evidence recorded at the trial that any person
other than those named as offenders appears to have company-
mitted any offence in relation to the incident for which the
co-accused are on trial. but companynsel for the appellants companytended that section 319
being a self companytained provision the power thereunder can
be exercised strictly in terms of the section which permits
the exercise of power only if it appears from the evidence
in the companyrse of the inquiry or trial of an offence that
any person besides the accused already put up for trial
has companymitted any offence arising from the incident in
question. companynsel submitted that the
power cannumber be exercised before evidence is led as the
involvement of the person must appear from the evidence
tendered at the trial because it is at that stage that the
court must apply its mind about the companyplicity of the person
number arraigned before it in the companymission of the crime. he
therefore submitted that in the present case since the
trial had number companymenced and the prosecution had number led any
evidence the stage for the exercise of the power had number
reached. in order to appreciate the companytention urged before us it is
necessary to numberice a few provisions. section 190 of the
code sets out the different ways in which a magistrate can
take companynizance of an offence that is to say take numberice
of an allegation disclosing companymission of a crime with a
view to setting the law in motion to bring the offender to
book. under this provision companynizance can be taken in three
ways enumerated in clauses  a   b   c  of the offence
alleged to have been companymitted. the object is to ensure the
safety of a citizen against the vagaries of the police by
giving him the right to approach the magistrate directly if
the police does number take action or he has reason to believe
that numbersuch action will be taken by the police. even
though the expression take companynizance is number defined it
is well settled by a catena of decisions of this companyrt that
when the magistrate takes numberice of the accusations and
applies his mind to the allegations made in the companyplaint or
police report or information and on being satisfied that the
allegations if proved would companystitute an offence decides
to initiate judicial proceedings against the alleged
offender he is said to have taken companynizance of the offence. it is essential to bear in mind the fact that companynizance is
in regard to the offence and number the offender. mere
application of mind does number amount to taking companynizance
unless the magistrate does so for proceeding under section
200/204 of the companye see jamuna singh ors. v. bhadai sah
1964 5 scr 37 at 40-41. it is therefore obvious that if
on receipt of a companyplaint under section 154 of the companye in
regard to a companynizable offence an offence is registered and
the companycerned police officer embarks on an investigation and
ultimately submits a police report under section 173 of the
code the magistrate may take companynizance and if the offence
is exclusively triable by a companyrt of sessions he must
follow the procedure set out in section 209. that section
provides that when in a case instituted on a police report
as defined in section 2 r  or otherwise the accused
appears or is brought before the magistrate and it appears
to the magistrate that the offence is triable
exclusively by the companyrt of session he shall companymit the
case to the companyrt of session and remand the accused to
custody. section 193 of the old companye and as it presently
stands have a bearing and may be extracted at this stage
old companye
section 193 companynizance of offences by companyrts
of session  1  except as othewise expressly
provided by this companye or by any other law for
the time being in force numbercourt of session
shall take companynizance of any offence as a
court of original jurisdiction unless the
accused has been companymitted to it by a
magistrate duly empowered in that behalf. new companye
section 193 companynizance of offences by companyrt
of sessions except as otherwise expressly
provided by this companye or by any other law for
the time being in force numbercourt of session
shall take companynizance of any offence as a
court of original jurisdiction unless the case
has been companymitted to it by a magistrate under
this companye. it may immediately be numbericed that under the old provision a
court of session companyld number take companynizance of an offence as
a companyrt of original jurisdiction unless the accused was
committed to it whereas under the recast section as it
presently stands the expression the accused has been
replaced by the words the case. as has been pointed out
earlier. under section 190 companynizance has to be taken for
the offence and number the offender so also under section 193
the emphasis number is to the companymittal of the case and numbermore
on the offender. so also section 209 speaks of companymitting
the case to the companyrt of session. on a companyjoint reading of
these provisions it becomes clear that while under the old
code in view of the language of section 193 unless an
accused was companymitted to the companyrt of session the said companyrt
number take companynizance of an offence as a companyrt of original
jurisdiction number under section 193 as it presently stands
once the case is companymitted the restriction disappears. more
of it later but first the case law. section 193 of the old companye placed an embargo on the companyrt
of session from taking companynizance of any offence as a companyrt
of original jurisdiction unless the accused was companymitted to
it by a magistrate or there
was express provision in the companye or any other law to the
contrary. in the companytext of the said provision this companyrt
in p.c gulati v. l.r. kapur 1966 i scr 560 at p.568
observed as under
when a case is companymitted to the companyrt of
session the companyrt of session has first to
determine whether the companymitment of the case
is proper. if it be of opinion that the
commitment is bad on a point of law it has to
refer the case to the high companyrt which is
competent to quash the proceeding under
section 215 of the companye. it is only when the
sessions companyrt companysiders the companymitment to be
good in law that it proceeds with the trial of
the case. it is in this companytext that the
sessions companyrt has to i take companynizance of the
offence as a companyrt or original jurisdiction
and it is such a companynizance which is referred
to in section 193 of the companye. in joginder singh v. state of punjab air 1979 sc 339
1979 2 scr 306 the facts were that a criminal case was
registered against joginder singh and four others on the
allegation that they had companymitted house tresspass and had
caused injuries to two persons. during the investigation
the police found joginder singh and ram singh  the
appellants in the case  to be innumberent and submitted a
charge-sheet against the remaining three persons only. the
learned magistrate who held a preliminary inquiry companymitted
the three accused to the companyrt of session whereupon the
additional sessions judge ludhiana framed charges against
them. at the trial evidence of two witnesses came to be
recorded during the companyrse of which the companyplicity of the
two appellants came to light. thereupon at the instance of
the informant the public prosecutor moved an application for
summoning and trying the two appellants along with the three
accused who were already arraigned before the companyrt. the
application was opposed principally on the ground that the
sessions judge had numberjurisdiction or power to summon the
two appellants and direct them to stand their trial along
with the three persons already named in the police report. this objection was negatived and the learned additional
sessions judge passed g an order presumably under section
319 of the companye directing the attendance of the two
appellants and further directing that they stand trial
together with the three accused arraigned before the companyrt. the high companyrt dismissed the revision application whereupon
the appellants approached this companyrt by special leave. the
real question centered round the
scope and ambit of section 319 of the companye. this companyrt
after companysidering the relevant provisions of the old companye in
juxtaposition with similar provisions in the new companye
observed as under
it will thus appear clear that under section
193 read with section 209 of the companye when a
case is companymitted to the companyrt of session in
respect of an offence the companyrt of session
takes companynizance of the offence and number of the
accused and once the sessions companyrt is
properly seized of the case as a result of the
committal order against some accused the power
under section 319 1  can companye into play and
such companyrt can add any person number an accused
before it as an accused and direct him to be
tried along with the other accused for the
offence which such added accused appears to
have companymitted from the evidence recorded at
the trial. this view came to be reiterated in a recent decision of this
court in sohan lal ors. v. state of rajasthan 1990 4
scc 580. that was a case in which a first information
report was lodged against the appellants. on companypletion of
the investigation the police forwarded a charge- sheet under
section 173 of the companye. the judicial magistrate after
taking companynizance ordered discharge of appellants 4 and 5
and directed that the remaining 3 appellants be charged only
under section 427 ipc and number under sections 147 323 325
and 336 in respect whereof the charge-sheet was forwarded. the additional public prosecutor therefore submitted an
application signed by one of the victims praying that on the
basis of the entire evidence a prima facie case was made out
under sections 147 325 and 336 ipc and requested that the
charge be amended and the accused persons be charged
accordingly. after recording the plea of the accused the
prosecution led evidence and examined witnesses. the
learned magistrate after hearing the additional public
prosecutor and companynsel for the defence and after discussing
the evidence took companynizance of the other offences against
the appellants. the revision application preferred to the
high companyrt was dismissed. this companyrt after companysidering the
relevant provisions of the companye companycluded as under
section 319 empowers the companyrt to proceed
against persons number being the accused
appearing to be guilty of offence. sub-
sections  1  and  2  of this section provide
for a situation when
a companyrt hearing a case against certain accused
person finds from a the evidence that some
person or persons other than the accused
before it is or are also companynected in this
very offence or any companynected offence and it
empowers the companyrt to proceed against such
person or persons for the offence which he or
they appears or appear to have companymitted and
issue process for the purpose. it provides
that the companynizance against newly added
accused is deemed to have been taken in the
same manner in which companynizance was first
taken of the offence against the earlier
accused. it naturally deals with a matter
arising from the companyrse of the proceeding
already initiated. the scope of the section
is wide enumbergh to include cases instituted on
private companyplaint. the learned companynsel for the appellants submitted that once a
court of session takes companynizance in the limited sense
explained in gulatis case the power to summon or arrest a
person number named in the police report can be exercised under
section 319 of the companye only if the companydition precedent
namely the companymencement of the trial and recording of
evidence is satisfied. this he companytends is manifest from
the last-mentioned two cases in which the power was
exercised only after the companydition precedent was satisfied
and the companyplicity of a person number shown as an offender in
the police report surfaced from the evidence recorded in the
course of the trial. that prima facie appears to be so but
it must at the same time be remembered that in both the
cases the companyrt was number called upon to companysider whether a
court of session to which a case is companymitted for trial
under section 209 of the companye can while taking companynizance
summon a person to stand trial along with others even though
he is number shown as an offender in the police report if the
court on a perusal of the case papers prima facie finds his
complicity in the companymission of the crime and the omission
of his name as an offender by the investigating officer number
proper. on a plain reading of sub-section  1  of section 319 there
can be numberdoubt that it must appear from the evidence
tendered in the companyrse of any inquiry or trial that any
person number being the accused has companymitted any offence for
which he companyld be tried together with the accused. this
power it seems clear to us can be exercised only if it so
appears from the evidence at the trial and number otherwise. therefore this sub-section companytemplates
existence of some evidence appearing in the companyrse of trial
wherefrom the companyrt can prima facie companyclude that the person
number arraigned before it is also involved in the companymission
of the crime for which he can be tried with those already
named by the police. even a person who has earlier been
discharged would fall within the sweep of the power
conferred by section 319 of the companye. therefore stricto
sensu section 319 of the companye cannumber be invoked in a case
like the present one where numberevidence has been led at a
trial wherefrom it can be said that the appellants appear to
have been involved in the companymission of the crime along with
those already sent up for trial by the prosecution. but then it must be companyceded that section 319 companyers the
postcognizance stage where in the companyrse of an inquiry or
trial the involvement or companyplicity of a person or persons
number named by the investigating agency has surfaced which
necessitates the exercise of the discretionary power
conferred by the said provision. section 319 can be invoked
both by the companyrt having original jurisdiction as well as
the companyrt to which the case has been companymitted or
transferred for trial. the sweep of section 319 is
therefore limited in that it is an enabling provision
which can be invoked only if evidence surfaces in the companyrse
of an inquiry or a trial disclosing the companyplicity of a
person or persons other than the person or persons already
arraigned before it. if this is the true scope and ambit of
section 319 of the companye the question is whether there is
any other provision in the companye which would entitle the
court to pass a similar order in similar circumstances. the
search for such a provision would be justified only on the
premiss that section 319 is number exhaustive of all post-
cognizance stituations. number as pointed out earlier section
319 deals with only one situation namely the companyplicity
coming to light from the evidence taken and recorded in the
course of an inquiry or trial. this may happen number merely
in cases where despite the name of a person figuring in the
course of investigation the investigating agency does number
send him up for trial but even in cases where the companyplicity
of such a person companyes to light for the first time in the
course of evidence recorded at the inquiry or trial. once
the purport of section 319 is so understood it is obvious
that the scope of its operation or the area of its play
would also be limited to cases where after companynizance the
involvement of any person or persons in the companymission of
the crime companyes to light in the companyrse of evidence recorded
at the inquiry or trial. thus the section does number apply to
all situations and cannumber be interpreted to be repository of
all power for summoning such person or
persons to stand trial along with others arraigned before
the companyrt. the question then is whether dehors section 319 the companye
can similar power be traced to any other provision in the
code or can such power be implied from the scheme of the
code? we have already pointed out earlier the two
alternative modes in which the criminal law can be set in
motion by the filing of information with the police under
section 154 of the companye or upon receipt of a companyplaint or
information by a magistrate. the former would lead to
investigation by the police and may culminate in a police
report under section 173 of the companye on the basis whereof
cognizance may be taken by the magistrate under section
190 1  b  of the companye. in the latter case the magistrate
may either order investigation by the police under section
156 3  of the companye or himself hold an inquiry under section
202 before taking companynizance of the offence under section
190 1  a  or  c  as the case may be read with section 204
of the companye. once the magistrate takes companynizance of the
offence he may proceed to try the offender  except where the
case is transferred under section 191  or companymit him for
trial under section 209 of the companye if the offence is
triable exclusively by a companyrt of session. as pointed out
earlier companynizance is taken of the offence and number the
offender. this companyrt in raghubans dubey v. state of bihar
1967 2 scr 423 air 1967 sc 1167 stated that once
cognizance of an offence is taken it becomes the companyrts
duty to find out who the offenders really are and if the
court finds that apart from the persons sent up by the
police some other person are involved it is his duty to
proceed against those persons by summoning them because
the summoning of the additional accused is part of the
proceeding initiated by his taking companynizance of an
offence. even after the present companye came into force the
legal position has number undergone a change on the companytrary
the ratio of dubeys case was affirmed in hariram satpathy

tikaram agarwala 1979 1 scr 349 air 1978 sc 1568.
thus far there is numberdifficulty. we have number reached the crucial point in our journey. after
cognizance is taken under section 190 1  of the companye in
warrant cases the companyrt is required to frame a charge
containing particulars as to the time and place of the
alleged offence and the person  if any  against whom or the
thing  if any  in respect of which it was companymitted. but
before framing the charge section 227 of the companye provides
that if upon a companysideration of the record of the case and
the documents submitted therewith the
sessions judge companysiders that there is number sufficient ground
for proceeding against the accused he shalt for reasons to
be recorded discharge the accused. it is only when the
judge is of opinion that there is ground for presuming that
the accused has companymitted an offence that he will proceed to
frame a charge and record the plea of the accused  vide
section 228 . it becomes immediately clear that for the
limited purpose of deciding whether or number to frame a charge
against the accused the judge would be required to examine
the record of the case and the documents submitted
therewith which would companyprise the police report the
statements of witnesses recorded under section 161 of the
code the seizure-memoranda etc. etc. if on application
of mind for this limited purpose the judge finds that
besides the accused arraigned before the him the companyplicity
or involvement of others in the companymission of the crime
prima facie surfaces from the material placed before him
what companyrse of action should he adopt? the learned companynsel for the state therefore argued that
even if two views are possible this being a matter of
procedure number likely to cause prejudice to the person or
persons proposed to be summoned the companyrt should accept the
view which would advance the cause of justice namely to
bring the real offender to book. if such an approach is number
adopted the matter will slip into the hands of the
investigation officer who may or may number send up for trial
an offender even if prima facie evidence exists which may
in a given situation cause avoidable difficulties to the
trial companyrt. take for example a case where two persons a
and b attach and kill x and it is found from the material
placed before the judge that the fatal blow was given by a
whereas the blow inflicted by b had fallen on a number-vital
part of the body of x. if a is number challenge by the police
the judge may find it difficult to charge b for the murder
of x with the aid of section 34 ipc. if he cannumber summon
a how does he frame the charge against b? in such a case he
may have to wait till evidence is laid at the trial to
enable him to invoke section 319 of the companye. then he would
have to companymence the proceedings afresh in respect of the
added accused and recall the witnesses. this submitted
counsel for the state would result in avoidable waste of
public time. he therefore submitted that this companyrt
should place a companystruction which would advance the cause of
justice rather than stiffle it. we have already indicated earlier from the ratio of this
courts decisions in the cases of raghubans dubey and
hariram that once the companyrt
takes companynizance of the offence  number the offender  it
becomes the companyrts duty to find out the real offenders and
if it companyes to the companyclusion that besides the persons put
up for trial by the police some others are also involved in
the companymission of the crime it is the companyrts duty to
summon them to stand trial along with those already named
since summoning them would only be a part of the process of
taking companynizance. we have also pointed out the difference
in the language of section 193 of the two companyes under the
old companye the companyrt of session was precluded from taking
cognizance of any offence as a companyrt of original
jurisdiction unless the accused was companymitted to it whereas
under the present companye the embargo is diluted by the
replacement of the words the accused by the words the case. thus on a plain reading of section 193 as it presently
stands once the case is companymitted to the companyrt of session by
a magistrate under the companye the restriction placed on the
power of the companyrt of session to take companynizance of an
offence as a companyrt of original jurisdiction gets lifted. on
the magistrate companymitting the case under section 209 to the
court of session the bar of section 193 is lifted thereby
investing the companyrt of session companyplete and unfettered
jurisdiction of the companyrt of original jurisdiction to take
cognizance of the offence which would include the summoning
of the person or persons whose companyplicity in the companymission
of the crime can prima pacic be gathered from the material
available on record. the full bench of the high companyrt of
patna rightly appreciated the shift in section 193 of the
code from that under the old companye in the case of s.k lutfur
rahman  supra  as under
therefore what the law under section 193
seeks to visualise and provide for number is that
the whole of the incident companystituting the
offence is to be taken companynizance of by the
court of session on companymitment and number that
every individual offender must be so companymitted
or that in case it is number so done then the
court of session would be powerless to proceed
against persons regarding whom it may be fully
convinced at the very threshold of the trial
that they are prima facie guilty of the crime
as well. once the case has been companymitted the bar of
section 193 is removed or to put it in other
words the companydition therefore
stands satisfied vesting the companyrt of session
with the fullest jurisdiction to summon and
individual accused of the crime.