criminal appellate jurisdiction criminal appeal number 24 of
1970.
appeal by certificate from the judgment and order dated
march 27 1968 of the rajasthan high companyrt at jodhpur in d.

cr. a. number 762/ 64 and s.b. cf. a. number 387 of 1964.

m. singhvi and maya rao for the appellant. k. sen a. n. mulla and sobhag mal jain for the
respondent. the judgment of the companyrt was delivered by
khanna j. tarachand jain respondent was companyvicted by
special judge balotra for an offence under section 161
indian penal companyrt and was sentenced to undergo rigorous
improvement for a period of one year and to pay a fine of
rs. 1000 or in default to undergo rigorous imprisonment
for a further period of six months. on appeal the rajasthan
high companyrt set aside the companyviction of the respondent on the
ground that numbervalid sanction for his prosecution had been
proved. all the proceedings against the respondent were
quashed-and the whole trial was held to be null and void for
want of valid sanction. it was however made clear that
the order of the high companyrt would number bar a subsequent
trial of the respondent on the basis of a valid-and prior
sanction if the state was so advised to take that companyrse. the present appeal has been filed in this companyrt by the state
of rajasthan on certificate of fitness granted by the high
court against its above judgement. the respondent was a member of rajasthan administrative
service and was posted at the material time as sub-
divisional magistrate barmer. it is alleged that between
numberember 1959 and march 1960 the respondent accepted illegal
gratification from various parties to the cases. which were
pending before him on the pretext of showing undue favour to
them. one hazi ali mohammed was an accused in a passport
case pending before the respondent. hazi ali mohammed made
a companyplaint to the deputy superintendent police anti
corruption department jodhpur on. march 30 1960 that the
respondent had made a demand of bribe from him. a trap was
accordingly laid during the companyrse of which the respondent
was stated to have accepted an amount of rs. 500 in marked
currency numberes as bribe. those currency numberes were
thereafter recovered from the possession of the respondent
during the companyrse of investigation a further sum of rs. 114so which was lying companycealed in the respondents house
was also recovered. the respondent had a bank balance of
rs. 5 534.68 and- he used to deposit a major part of his
salary every month in the bank. the respondent was put up
for trial on the above allegations for offences under sectio
n 161 indian penal companye and section 5 2  of the
prevension of companyruption act after sanction for his
prosecution had been obtained. the
material part of the sanction which was subsequently
exhibited as p34 was as under
government of rajasthan
appointment  a-iii  department
order
number f. 19 33 apptts a /60/group iii.-jaipur
the 6th october 1960.-whereas it has been
brought to the numberice of the governumber of
rajasthan that shri tara chand jain ras s o
shri kesar lal jain resident of panch batti
baxhi bhawan jaipur city and posted at
barmer as sub-divisional magistrate has
accepted or obtained rs. 5001/- for himself
from shri hazi ali mohammed s o shri hari
musalman resident of village siyar district
barmer accused in case number 82 of 1959 and number
462 of 1969 state vs. shri hazi ali mohammed
under section 3/6 indian passport rules and
state vs. hazi ali mohammed under section
12/11 rajasthan religious buildings and places
act respectively pending in his companyrt on 30-3-
60 at his residence at barmer as gratifi-
cation other than legal remuneration as a
motive or reward for showing favour to him in
the exercise of his official functions by
extending a promise to decide the cases. in
his favour or by companyrupt and illegal mean or
by otherwise abusing his position as a public
servant has obtained for himself pecuniary
advantage in the form of g. c. numberes of rs. 5001/- in discharge of his duty and which
gratification of rs. 5001/- was also recovered
from his possession by the deputy
superintendent of police anti companyruption shri
nand singh in the presence of motbir
witnesses companyplainants and police party and
which acts of said sub divisional magistrate
are punishable under section 161 i.p.c. 5
 1   d   2  of p.c. act 1947.
and whereas it has also been brought to the
numberice of governumber of rajasthan that shri tara
chand jain ras sub-divisional magistrate
barmer has habitually accepted or obtained the
following amounts from the following persons
in cases against them in his companyrt as
gratification  other than legal remuneration
as a motive ox reward such as is mentioned in
section 161 of the indian penal companye. and whereas from the perusal of the facts on
the record of this case placed before the
governumber of rajasthan he is satisfied that
there are reasonable grounds to believe that
shri tara chand jain sub-divisional
magistrate has companymitted the offence within
the meaning of section 161 i.p.c. and has also
committed the offence of criminal misconduct
in the discharge of his duties falling under
clauses 5  1    a  and 5  1   d  read with 5
 2  of p.c. act  11 of 1947  on the basis of
facts stated above. and whereas there is numberother ground
whatsoever to refuse or withhold the sanction
for the prosecution of shri tara chand jain. number therefore in pursuance of section 6 1
 b  of the prevention of companyruption act 1947
the governumber of rajasthan being the companypetent
authority to remove shri tara chand jain from
his office do hereby accords sanction for the
prosecution of the said shri tara chand for
the offences under section 161 i.p.c. and
section 5 2  read with section 5  1   a  and 5
 1   d  of p.c. act 1947  number 11 of 1947
or any other offence or offences which may be
found to have been companymitted by shri tara
chand jain in this companynection. by order of the governor
 a . sd -  b

d. thapar  ias
special secretary to the government. the respondent at the trial denied the allegations against
him about his having demanded or accepted bribe. the special judge examined 28 prosecution witnesses till
august 18 1961. on that date the evidence of umraomal
section officer appointments a-iii department government
of rajasthan had to be recorded. before however the
statement of umraomal companyld be recorded the special public
prosecutor. filed an application wherein it was stated that
on examination of the record it had been found that the
original sanction of prosecution though having passed
through .he various requisite processes of the government
is laconic in the absence of specific approval of the
governumber of the state in writing which is requisite under
section 6 of the prevention of companyruption act 1947. it was
submitted that the said lacuna was a procedure
irregularity and was curable at any stage. prayer was
accordingly made for adjournment to enable the prosecution
to file the requisite sanction. on september 30 1961 the deputy government advocate filed
anumberher application repudiating the stand taken in the
special public prosecutors application dated august 18
1961. it was stated that the earlier application had been
filed by the special public prosecutor under some
misconception of legal points. according to the application
dated september 30 1961 the governumber had number reserved unto
himself the right of sanctioning prosecution and therefore
it was futile to send the papers to the governumber. the
sanction was stated to have been properly accorded. it was
also claimed that the executive order issued by the
government in the name of the governumber was number justiciable
and companyld number be challenged. on october 28 1961 an application was filed on behalf of
the respondent questioning the validity of the sanction. reference was made to rule 31 of the rules of business and
it was stated that any proposal for dismissing or removing
an officer should be submitted to the governumber and the chief
minister before the issue of orders. the respondent was
stated to be removable from office under the orders of the
governumber. there was according to the respondent numbervalid
sanction. prayer was made that the question of the validity
of the sanction should be decided before proceeding further
with the case. the special judge thereafter companysidered the matter and
passed order dated numberember 3 1961. in the companyrse of that
order the special judge stated
the accused at the time of companymission of the
alleged offences was the member of the
rajasthan administrative service and thus was
in state service. this fact is number disputed. the sanction to prosecute the accused was
given by the chief minister. looking to the above discussion i hold that
the accused an officer of the rajasthan
administrative service was and is removable
from service by the governumber of the state of
rajasthan and number by the chief minister. the
necessary companysequence of this will be that
according to section 6 of the prevention of
corruption act the governumber of the state of
rajasthan alone can sanction the prosecution
of the accused for offences mentioned in that
section. the special judge accordingly arrived at the
following companyclusion
i have held above that the governumber of
rajasthan alone is companypetent to remove from
service the officer of the rajasthan
administrative services. in other words i
hold that the- accused was and is removable
from service by the governumber and he alone
could sanction the prosecution of the accused
for offence under section 161 i.p.c. and under
section 5 2  prevention of companyruption act. the chief minister had numberauthority to
sanction the prosecution of the accused for
the said offences and the sanction given in
this case must be held to be invalid. that
being so the companynisance was taken by
the companyrt
wrongly and the proceedings taken must be and
are held to be void as having been taken
without jurisdiction. revision petition was filed by the state against the above
order of the special judge. a division bench of the high
court dave and chhangani jj. accepted the revision
position as per judgment dated october 5 1962. the learned
judges referred to the rules of business and article 166 of
the companystitution and summed up their companyclusion as tinder
the final companyclusion then to be reached in
the light of the foregoing discussion is that
the chief minister was companypetent to finally
dispose of cases relating to sanction for
prosecution of the respondent accused and it
was number necessary that the papers should have
been placed to the governumber before issue of
the final orders and that the chief minister
constituted the government in this latter and
the sanction accorded by him in the name and
the authority of the governumber is valid
government sanction and that being the real
position we cannumber companycur in the view taken
by the special judge. to companyclude we must hold that the special
judge was number justified in treating the order
of the government sanctioning the prosecution
of the respondent as defective on the ground
of an omission to put up the papers before the
governumber before the final issue of the orders
by the chief
minister and the order of discharge passed by
him on this finding is erroneous and cannumber be
maintained. we would therefore accept the
revision set aside the order of the special
judge balotra and send the case for further
proceedings in accordance with law. after the above order of the high companyrt when the case was
taken up by the special judge  he recorded the evidence of
umraomal  pw 29  on july 19 1963. umraomal in the companyrse
of the evidence. stated that sanction p34 bore the signature
of shri r. d. thapar special secretary in the appointments
 a-iii  department. at the time of arguments before the special judge question
was agitated about the want of proper sanction for the
prosecution of the respondent. argument was. advanced that
there was numberevidence to show that the papers had been put
up to the chief minister and he had given the sanction
after applying his mind. the special judge rejected this
contention after observing that at the time he passed order
dated september 3 1961 the admitted position of the parties
was that papers had been put up to the chief minister and he
had given the sanction for the prosecution after applying
his mind. the special judge also referred to the
observation in the judgment of the high companyrt and held that
numberexception companyld be taken in respect of sanction p34 to
prosecute the respondent. the sanction it was held was
valid. the accused-respondent then went up in appeal before the
high companyrt. it was argued in the high companyrt on behalf of
the accused respondent in appeal that it had never been
admitted by him that the sanction for his prosecution had
given by the chief minister after applying his mind to the
facts and circumstances of the case. it was further urged
that there was numberhing to prove that the sanction for the
prosecution of the accused-respondent have been accorded by
the chief minister after applying his mind to the facts and
circumstances of the case. this companytention found favour
with the learned judges of the high companyrt tyagi and lodha
jj. prayer was made before the high companyrt during the companyrse
of arguments by the deputy government advocate that he might
be allowed to adduce additional evidence to prove that the
relevant papers had been put up to the chief minister and
that the chief minister had accorded sanction for the
prosecution of the respondent after applying his mind. the
high companyrt turned down this prayer. in the result the
respondents appeal was accepted by the high companyrt as per
judgment dated march 27 1968. his companyviction was set aside
and the proceedings taken against him a the trial were
quashed as mentioned earlier on the ground of being null
and void in the absence of proof of valid sanction. in appeal before us the learned advocate-general for the. state of rajasthan has assailed the companyrectness of tie
judgment of the high companyrt. it is urged that in view of the
earlier division bench judgment dated october 51962 it was
number open to the high companyrt to quash the proceedings against
the respondent for want of proof of valid sanction. in any
case according to the advocate-general there was enumbergh
material to show that valid sanction for the prosecution of
the accused-respondent had been accorded. the above stand
has been companytroverted
by mr. asoka sen on behalf of the respondent and he has
canvassed for the companyrectness of the impugned judgment of
the high companyrt. in our opinion there is companysiderable force in both the
contentions advanced on-behalf of the appellant. so far as
the first question about the effect of the earlier division
bench judgment dated october 5 1962 is companycerned we find
that the special judge held the sanction under section 6 of
the prevention of companyruption act to be invalid as he was of
the view that the sanction should have been accorded by the
governumber. the order dated numberember 3 1961 of which
extracts have been reproduced earlier shows that it was the
accepted position before him that the sanction to prosecute
the accused had been given by the chief minister. as the
special judge thought that the-chief minister had no
authority to sanction the prosecution and that the sanction
could only be accorded by the governumber he held the
proceedings taken in the case to be void and without
jurisdiction. when the matter was taken up in revision
before the high companyrt the learned judges at the outset
observed that the factual question as to whether the facts
and circumstances on which the respondent was sought to be
prosecuted had been placed before the chief minister and
whether he had applied his mind before being satisfied to
the need of sanction had number been agitated before and
determined by the special judge. the high companyrt all the
same accepted the position that sanction had in fact been
accorded by the chief minister. in the opinion of the high
court the chief minister was companypetent to accord sanction
for the prosecution of the respondent and it was number
necessary that the papers should have been placed before the
governumber. the high companyrt accordingly set aside the order
of the special judge. after the case had been remanded by
the high companyrt the accused agitated the question that there
was numberevidence to show that the papers had been put up to
the chief minister and he had given the sanction after
applying his mind. the special judge rejected these
contentions and observed that the admitted position of the
parties had been that the papers had been put up to the
chief minister who had accorded his sanction after applying
his mind. the special judge also relied upon the
observations of the high companyrt in support of his companyclusion
that numberexception companyld be taken in respect of the impugned
sanction. although the above observations of the special
judge were assailed in appeal before the high companyrt and the
high companyrt set aside the judgment of the special judge in
this respect we are of the opinion that the question as to
whether sanction for the prosecution of the accused had been
accorded by the chief minister companyld number be agitated in view
of the earlier division bench decision dated october 5 1962
of the high companyrt. the special judge as observed earlier
had mentioned in his order dated numberember3 1961 that the
sanction to prosecute the accused had been given by the
chief minister. this observation about the factual position
in the order of the special judge does number appear to have
been challenged in revision in the-high companyrt and it
apparently seems to have been accepted that the sanction for
the prosecution had been accorded by the chief minister. it
was in those circumstances that the high companyrt repeatedly
referred to the sanction accorded by the chief minister. the judgement dated october 5 1962 of the division bench of
the high companyrt in our opinion was binding upon the high
court when it disposed of the appeal filed by the accused-
respondent as per judgment dated march 27 1968 and it was
in our opinion number permissible to go into the question as
to whether the sanction had been accorded by the chief
minister. the question as to what is the binding effect of
a decision in subsequent proceedings of the same criminal
matter was companysidered by this companyrt in the case of bhagat
ram v. state of rajasthan   and it was held that the
principle of res judicata is also applicable to. criminal
proceedings and it is number permissible in the subsequent
stage of the same proceedings to companyvict a person for an
offence in respect of which an order for his acquittal has
already been recorded. reliance in this companytext. was placed
upon the observations of the judicial companymittee in the case
of samba sivan v. public prosecutor federation of
malaya 2 . in bhagat rams case a single judge of the high
court to whom a limited question had been referred because
of a difference of opinion between two judges of the
division bench number only decided the question referred to
him he also interfered with the acquittal of the accused
regarding certain offences in respect of which an order for
acquittal had already been made earlier by the division
bench. it was held that it was number within the companypetence
of the single judge to reopen the matter and pass the above
order of companyviction in the face of the earlier order of the
division bench for acquittal. although bhagat rams case
 supra  related to acquittal the principle laid down in
that case in our opinion holds good in a case like the
present wherein the question is about the binding effect of
the earlier division bench judgment regarding the validity
of the sanction for the prosecution of the accused-
respondent. reference has been made on behalf of the appellant to the
case of state of andhra pradesh v. kokkiliagada marraayya
and anr.  3  in that case proceedings were instituted under
section 107 of the companye of criminal procedure against four
persons in respect of four incidents. one of the incidents
was alleged to have taken place on june 22 1964. eleven
persons including the two respondents were stated to
have indulged in certain acts of violence as a result of
which a case had been registered against them under sections
148 323 and 325 indian penal companye . the magistrate holding
the inquiry took the view that the evidence led in support
of the incident of june 22 1964 was number reliable. subsequently the respondents were companyvicted for the offences
under section 323 and 324 indian penal companye in respect of
the incident of june 22 1964. the high companyrt set aside the
conviction of the respondents by invoking the principle of
issue estoppel. on appeal this companyrt held that the high
court was in error in holding that the respondents companyld number
be tried and companyvicted for offences under sections 324 and
323 indian penal companye because of the earlier proceedings
under section 107 of the companye of criminal procedure.dealing
with the question of issue estoppel this companyrt observed
the rule of issue estoppel cannumber in our
judgement be extended so as to prevent
evidence which was given in the
previous proceeding and which was held number
sufficient to
 1  1972 2 s.c.c. 466.  3  1969 2 s.c.r. 1004.  2  1950 a.c. 458.
sustain the other. for being used in support
of a charge of an offence which the state
seeks to make out. the rule of issue estoppel
prevents relitigation of the issue which has
been determined in a criminal trial between
the state and the accused. if in respect of
an offence arising out of a transaction a
trial has been taken place and the accused has
been acquitted anumberher trial in respect of
the offence alleged to arise out of that
transaction or of a related transaction which
requires the companyrt to arrive at a companyclusion
inconsistent with the companyclusion reached at
the earlier trial is prohibited by the rule of
issue estoppel. in the present case there
was numbertrial and numberacquittal. there is numberquestion in the present case also of a previous
trial and acquittal. this fact would number however detract
from the binding force of the earlier decision of the high
court. all that we are companycerned with is as to whether the
judgment of the high companyrt in revision is binding in the
subsequent proceedings in the case. so far as this question
is companycerned we have numberdoubt in our minds that the judg-
ment of the high companyrt in revision is binding in the
subsequent proceedings in the case. the case of companynelly v. director of public prosecutions   to
which also reference was made in the companyrse of arguments
dealt with section 4 of the criminal appeal act 1907 under
the english criminal law. dealing with companynellys case this
court observed in the case of merrayya  supra
our criminal jurisprudence is largely founded
upon the basic rules of english law though the
procedure is somewhat different. trials by
jury have been practically abolished and the
cases are being tried by judges. several
charges arising out of the same transaction
can be tried under the companye of criminal
procedure together at one trial and specific
issues are always raised and determined by the
courts. under the english system of
administration of criminal law trials for
serious offences are. held with the aid of the
jury and it is frequently impossible to
determine with certitude the specific issues
on which the verdict of the jury is founded. in criminal trials under the companye of criminal
procedure there is numberuncertainty in the
determination of issues decided. difficulties
envisaged in companynellys case in the
application of the rule of issue estoppel do
number therefore arise under our system. in view of what has been stated above numberhelp can be derived
by the respondent from companynellys case. apart from the binding effect of the judgment dated october
5 1962 of the high companyrt we are of the opinion that there
is positive evidence on the record of this case that the
sanction for the prosecution of the accused-respondent has i
been accorded by the chief minister. although numberquestion
in this respect was put to umraomal
 1  1964 a.c. 1254.  pw 29  in examination-in-chief the witness stated in
reply to a question put to him in cross-examination that the
chief minister had signed the sanction. the witness no
doubt added that he was number present at the time the chief
minister had signed the sanction but his statement about the
signing of the sanction by the chief minister does number
appear to have been challenged by putting any further
question to the witness. the witness was working as office
superintendent appointments department at the relevant time
and as such would be presumably familiar with the signature
of the chief minister in the ordinary companyrse of business. the learned judges of the high companyrt while holding that
there was numbermaterial to prove that the sanction had been
accorded by the chief minister made numberreference to the
statement of umraomal that the chief minister had signed
the sanction. in our opinion the judgment of the high
court in this respect is vitiated by its omission to take
into account a material piece of evidence. the fact that the chief minister was companypetent to accord
sanction for the prosecution of the respondent in
accordance with the rules of business has number been disputed
before us but it has been urged that the prosecution has
failed to prove that the chief minister accorded his. sanction after applying his mind to the facts of this case. so far as this aspect of the matter is companycerned we find
that the position of law is. that the burden of proof that
the requisite sanction had been obtained rests upon the
prosecution. such burden includes proof that the sanc-
tioning authority had given the sanction in reference to the
facts on which the proposed prosecution was to be based. these facts might appear on the face of the sanction or it
might be proved by independent evidence that sanction was
accorded for prosecution after those facts had been placed
before the sanctioning authority. the question of sanction was dealt with by the judicial
committee in the case of gokulchand dwarkadas morarka v. the
king 1 . that case related to a sanction under clause 23
of the companyton cloth and yarn  companytrol  order 1943 which
provided that numberprosecution for the companytravention of any of
the provisions of the order would be instituted without the
previous sanction of the provincial government. the
judicial companymittee in this companytext observed
in their lordships view to companyply with the
provisions of el. 23 it must be proved that
the sanction was given in respect of the facts
constituting the offence charged. it is
plainly desirable that the facts should be
referred to on the face of the sanction but
this is number essential since cl. 23 does number
require the. sanction to be in any particular
form number even to be in writing. but if the
facts companystituting the offence charged are number
shown on the face of the sanction the prose-
cution must prove by extraneous evidence that
those facts were placed before the sanctioning
authority. the principle laid down above holds good for the purpose of
sanction under section 6 of the prevention of companyruption act
see madan mohan singh v. state of uttar pradesh 2 . let us
number apply the principle laid
 1  75 i.a. 30.  2  a.i.r. 1954 s.c. 637. 1 56
down above to the facts of the present case. it is numberdoubt
true that numberindependent evidence was led by the prosecution
to prove that the relevant facts had been placed before the
chief minister before he accorded sanction but that fact in
our opinion introduce numberfatal infirmity in the case. sanction p34 has been reproduced earlier in this judgement
and it is manifest from its perusal that the facts
constituting the offence have been referred to on the face
of the sanction. as such it was number necessary to lead
separate evidence to show that the relevant facts were
placed before the chief minister. the evidence of umraomal
shows that the formal sanction p 34 filed in the companyrt bears
the signature of shri r. d. thapar special secretary to the
government.


civil appellate jurisdiction civil appeal number 2411 of
1978.
appeal by special leave from the judgment and order
dated 26-7-1978 of the karnataka high companyrt in writ petition
number 10203/ 77.
and
original jurisdiction writ petitions number. 4473-4474
4415 4488 4528 and 4539 of 1978.  under article 32 of the companystitution . d

b. rikar k. r. nagaraja and mrs. gayathri balee for
the petitioner  in wp. 4473-4474 4488 4539/78 . b. datar and navin sinha for the petitioner  in wp. 4415 and 4528 and for-appellant in ca 2411/78 . a. sayield mohammad and n. nettar for the state of
karnataka and for respondent number 3 in wps. 4473-4474 4488
4528 and 4539 and c.a. 2411/78. n. sinha attorney general k. k. venugopal
additional solicitor general v. a. sayied mohammad and
vineet kumar for karnataka state road transport companyporation
 in all w.p.s c.a. . the judgment of the companyrt was delivered by
sen j-this appeal by special leave directed against
a judgment of the karnataka high companyrt dated july 26 1978
and the companynected petitions under art. 32 of the
constitution raise a companymon question. it would therefore
be companyvenient to dispose them of by this companymon judgment. the short question involved in these cases is whether
the employees of the erstwhile companytract carriage operators
in the state of karnataka acquired a vested right of
absorption in service with the karnataka state road
transport companyporation under sub-cl.  3  to cl. 20 of the
karnataka companytract carriages  acquisition  ordinance 1976.
it will be companyvenient to refer in the first place to
the legislative changes. on january 30 1976 the karnataka
contract carriages  acquisition  ordinance 1976 was
promulgated by the governumber of karnataka under cl.  1  of
art. 213 of the companystitution. the said ordinance was
promulgated with the object of acquiring companytract carriages
operating in the state and for certain matters companynected
therewith. on the same day i.e. on january 30 1976 the
state government issued a numberification under cl. 4 1  of the
ordinance vesting every companytract carriage owned or operated
by such companytract carriage operator along with permit in
the state government absolutely free from all encumbrances. on the same day the state government made an order under
sub-cl.  1  to cl. 20 of the ordinance transferring all the
contract carriages that vested in the state government under
the numberification issued under sub-cl.  1  to cl. 4 of the
ordinance to the karnataka state road transport companyporation
 hereinafter referred to as the companyporation . sub-clause
 3  to cl. 20 of the ordinance provided for absorption of
certain categories of employees of companytract carriage
operators in the service of the companyporation. it also
provided the ratio for absorption for different categories
of employees that were entitled to be absorbed in the
service of the companyporation. the ordinance was subsequently replaced by the
karnataka companytract carriages  acquisition  act 1976 which
was published in the gazette on march 12 1976. the
ordinance was repealed by the act and it re-enacted the
provisions of the repealed ordinance with a saving clause
in sub-s.  2  of s. 31 for preservation of anything done or
action taken. the act was substantially in similar terms
except for the difference that the ratio prescribed by
proviso to sub-cl.  3  to cl. 20 of the ordinance which
laid down the categories of persons who companyld be absorbed in
the service of the companyporation was substantially altered
and a new ratio was inserted in the proviso to sub-s.  3  of
s. 19 of the act. otherwise sub-s.  3  of s. 19 of the act
and sub-cl.  3  to cl. 20 of the ordinance were identical in
every respect. under proviso to sub-cl.  3  to cl. 20 the
total strength of the employees of the erstwhile companytract
carriage operators allowable for absorption was 7.9 per
vehicle while under proviso to sub-s.  3  of s. 19 of the
act the same works out to 4.45 per vehicle. further while
under the ordinance companyductors were entitled to be absorbed
the ratio provided under the act shows that companyductors are
number included in the categories of persons who can be
absorbed in the service of the companyporation. it appears that although as many as 785 companytract
carriages were a numberified for acquisition only 601 vehicles
were actually acquired. the change in the ratio of
absorption from 7.9 per vehicle under sub-cl.  3  to cl. 20
of the ordinance to 4.45 per vehicle under sub-s.  3  of s.
19 of the act adversely affected a large number of employees
of the erstwhile companytract carriage operators. a large number
of writ petitions were therefore filed in the high companyrt
challenging the vires of the proviso to sub-s.  3  of s. 19
of the act on various grounds but by the judgment under
appeal the high companyrt has repelled all the companytentions. thereafter the remaining writ petitions were all withdrawn. the appeal is against the judgment of the high companyrt
and the employees have also directly approached the companyrt
under art. 32.
before dealing with the companytention advanced in the
appeal it is necessary to set out the relevant provisions. sub-clause  3  to cl. 20 of the ordinance read as follows
20.  3  every person who is a workman within the
meaning of the industrial disputes act 1947  central
act 14 of 1947  and has been immediately before the
commencement of this ordinance exclusively employed in
connection with the acquired property shall on and
from the numberified date become an employee of the
corporation on the same terms and companyditions applicable
to the employees holding companyresponding posts in the
corporation. any person number willing to become such an
employee of the companyporation shall be entitled to
retrenchment companypensation as provided in the industrial
disputes act
provided that the number of workmen that shall
become employees of the companyporation under this sub-
section shall number exceed the following scale the
junior most being excluded- -
-----------------------------------------------------------
scale per vehicle
------------------------------------------------------------

drivers . . . . . . . . 1.5

conductors . . . . . . . 2.65

supervision . . . . . . 0.125

higher supervision staff and managers . 0.075

ministerial and secretariat staff . . . 0.8

technical staff including foreman . . . 2.75
------------------------------------------------------------
sub-section  3  of s. 19 of the act which replaced
sub-cl.  3  to cl. 20 of the ordinance provides
19.  3  every person who is a workman within the
meaning of the industrial disputes act 1947  central
act 14 of 1947  and has been immediately before the
commencement of this act exclusively employed in
connection with the acquired property shall on and
from the numberified date become an employee of the
corporation on the same terms and companyditions applicable
to the employees holding companyresponding posts in the
corporation. any person number willing to become such an
employee of the companyporation shall be entitled to
retrenchment companypensation as provided in the industrial
disputes act. provided that the number of workmen that shall become
employees of the companyporation under this sub-section shall
number exceed the following scale the junior most being
excluded-
----------------------------------------------------------
scale per vehicle
----------------------------------------------------------

drivers . . . . . . . . . . . . . . . 1.5

supervision staff and managers . . . . 0.1

ministerial and secretariat staff. . . 0.1

technical staff including foreman. . . 2.75
------------------
4.45
----------------------------------------------------------
the saving clause to be found in sub-s.  2  of s. 31 of
the act so far as material runs thus
31  2  numberwithstanding such repeal-

anything done or any action taken under the said
ordinance shall be deemed to have been done or taken
under the companyresponding provisions of this act. it is strenuously argued that it is clear from the
language of subcl.  3  to cl.  20  of the ordinance that
there was by operation of law automatic absorption of the
employees of the erstwhile companytract carriage operators to
the extent provided therein with effect from january 30
1976 the date on which the numberification was issued under
sub-cl.  1  to cl. 4 and the date on which the government
made an order under sub-cl.  1  to cl. 20. it is submitted
that the words shall become an employee of the
corporation ill sub-cl.  3  to cl. 20 are clear and
unambiguous and they must result in the companysequence that all
persons employed in companynection with the acquired
contract carriages became employees of the companyporation. it
is said a that though the process of absorption may take
time as and when the necessary steps were taken to fit in
such employees falling within the categories mentioned in
the proviso to sub-cl.  3  to cl. 20 their absorption
relates back to the numberified date i.e. january 30 1976. in
other words the submission was that the legal effect of
absorption of such employees under sub-cl.  3  to cl. 20 of
the ordinance is automatic. that being so their right of
absorption companyld number be whittled down by the subsequent
enactment of the new proviso to sub-s.  3  of s. 19 of the
act inasmuch as they had acquired a vested right to
absorption in the ratio mentioned in sub-cl.  3  to cl. 20
of the ordinance. c
the ordinance promulgated by the governumber in the
instant case was a legislative act of the governumber under
art. 213 1  and therefore undoubtedly a temporary statute
and while it was still in force the repealing act was passed
containing the saving clause in s. 31 2   i  providing that
numberwithstanding such repeal anything done or any action
taken under the repealed ordinance shall be deemed to have
been done or taken under the companyresponding provisions of the
act. the enquiry is therefore limited to the question
whether anything was done or action taken under the repealed
ordinance. if that be so a further question arises on the
submission whether the words things done in s. 31  2   i
reasonably interpreted can mean number only things done but
also the legal companysequences flowing therefrom. in companysidering the effect of an expiration of a
temporary act it would be unsafe to lay down any inflexible
rule. it certainly requires very clear and unmistakable
language in a subsequent act of the legislature to revive or
re-create an expired right. if however the right created
by the statute is of an enduring character and has vested in
the person that right cannumber be taken away because the
statute by which it was created has expired. in order to see
whether the rights and liabilities under the repealed
ordinance have been put an end to by the act the line of
enquiry would be number whether in the words of mukherjea j.
in state of punjab v. mohar singh 1  the new act expressly
keeps alive old rights and liabilities under the repealed
ordinance but whether it manifests an intention to destroy
them. anumberher line of approach may be to see as to how far
the new act is retrospective in operation. it is settled both on principle and authority that the
mere right existing under the repealed ordinance to take
advantage of the pro- 11 visions of the repealed ordinance
is number a right accrued. sub-section
 2  of s. 31 of the act was number intended to preserve
abstract right companyferred by the repealed  ordinance. the
legislature has the companypetence to so re-structure the
ordinance as to meet the exigencies of the situation
obtaining after the taking over of the companytract carriage
services. it companyld re-enact the ordinance according to its
original terms or amend or alter its provisions. what were the things done or action taken under the
repealed ordinance ? the high companyrt rightly observes that
there was neither anything done number action taken and
therefore the petitioners did number acquire any right to
absorption under sub-cl.  3  to cl. 20. the employees of the
former companytract carriage operators in numbermal companyrse filled
in the pro form giving their service particulars and
reported to duty. this was in the mere hope or expectation
of acquiring a right. the submission of these call reports
by the employees did number subject the companyporation to a
corresponding statutory obligation to absorb them in
service. as a matter of fact numberhing was done while the
ordinance was in force. the act was published on march 12
1976. on may 29 1976 the companyporation sent up proposals for
equation of posts to be filled in by the employees of the
former companytract carriage operators. the meeting of the
committee set up by the government for laying down the
principles for equation of posts and for determination of
inter-se seniority met on june 2 1976. the companymittee
decided that even in the case of helpers-cleaners there
should be a trade test and the staff cleared by the
committee for the posts of helper b helper a and
assistant artisans should be on the basis of their technical
competence experience ability etc. the companymittee also
decided that all other employees of companytract carriage
operators who were eligible for absorption should be
interviewed by that p companymittee for the purpose of
absorption on the basis of experience ability duties and
responsibilities. these numberms were number laid down till june
2 1976. till their actual absorption the employees of the
erstwhile companytract carriage operators had only an incohate
right. the distinction between what is and what is number a
right preserved by the provisions of s. 6 of the general
clauses act is often one of great fineness. what is
unaffected by the repeal of a statute is a right acquired or
accrued under it and number a mere hope or expectation of or
liberty to apply for acquiring a right. in director of
public works v. ho po sang   lord morris speaking for the
privy companyncil observed
it may be therefore that under some repealed
enactment a right has been given but that in respect
of it some
investigation or legal proceeding is necessary. the
right is then unaffected and preserved. it will be
preserved even if a process of quantification is
necessary. but there is a manifest distinction between
an investigation in respect of a right and an
investigation which is to decide whether so to right
should be or should number be given. on a repeal the
former is preserved by the interpretation act. the
latter is number.  emphasis supplied
it must be mentioned that the object of s. 31 2   i  is to
preserve only the things done and action taken under the
repealed ordinance and number the rights and privileges
acquired and accrued on the one side and the companyresponding
obligation or liability incurred on the other side so that
if numberright acquired under the repealed ordinance was
preserved there is numberquestion of any liability being
enforced. further it is significant to numberice that the saving
clause that we are companysidering in s. 31 2   i  of the act
saves things done while the ordinance was in force it does
number purport to preserve a right acquired under the repealed
ordinance. it is unlike the usual saving clauses which
preserve unaffected by the repeal number only things done
under the repealed enactment but also the rights acquired
thereunder. it is also clear that even s. 6 of the general
clauses act the applicability of which is excluded is number
intended to preserve the abstract rights companyferred by the
repealed ordinance. it only applies to specific rights given
to an individual upon the happening of one or other of the
events specified in the statute. employees in excess of the scale prescribed for the
categories specified under proviso to sub-s.  3  of s. 19 of
the act are clearly number entitled for absorption. though sub-
cl.  3  to cl. 20 of the ordinance provided for absorption
of certain classes of employees in a particular ratio with
effect from january 30 1976 it does number follow that there
was an automatic absorption as from that date. every such
person eligible for absorption had to fulfill three
conditions viz.  1  he had to be a workman within the
meaning of the industrial disputes act 1947  2  he should
have been immediately before the companymencement of the
ordinance exclusively employed in companynection with the
acquired property and  3  he had to companye within the ratio
provided in the proviso to sub-cl.  3  to cl. 20. the whole
object of inserting sub-cl.  3  to cl. 20 of the ordinance
was to obviate the unemployment of persons suitable for
employment. for this purpose the companyporation had necessarily
to screen the applicants. it is necessary to mention that cl. 5 of the ordinance
which companyresponds to s. 5 of the act provided that every
contract carriage 8-625sci/79
operator shall within 15 days from the numberified date or
within such further time as the state government may allow
furnish to the state government or any officer authorised by
it in this behalf companyplete particulars among others of
persons who were in their employment immediately before the
numberified date. it was only after such information was
received that steps had to be taken for the purpose of
ascertaining as to who were entitled to be absorbed in the
service of the companyporation in accordance with sub-cl.  3  to
cl. 20 of the ordinance. the authorities after companylecting
the necessary information had to determine number only the
corresponding posts to which the erstwhile employees of the
contract carriage operators companyld be absorbed in the service
of the companyporation but also their relative seniority for
the purpose of excluding the employees who were in excess of
the scale for the purpose of absorption. as sub-cl.  3  to cl. 20 itself provides that a person
who is number willing to become an employee of the companyporation
is entitled to retrenchment companypensation as provided for in
the industrial disputes act the authorities were also
required to ascertain as to whether the employee who was
entitled to be absorbed in service was willing to become an
employee of the companyporation or number. it was only if the
employee was willing to be absorbed in the service of the
corporation that the companyporation companyld absorb him in
service provided the other companyditions specified in sub-cl.  3  to cl. 20 were satisfied. thus it is clear that several
steps had to be taken by the authorities before identifying
and determining the persons who companyld be absorbed in the
service of the companyporation in accordance with sub-cl.  3
to cl. 20 of the ordinance. the very fact that all these various steps were
necessary to be taken which necessarily takes time shows
that automatic absorption of the employees of the erstwhile
contract carriage operators was number legally permissible. when the ordinance came to be replaced by the act the
corporation felt that the number of employees of the
erstwhile companytract carriage operators was too large for its
requirements. the legislature therefore stepped in and
reduced the scale of absorption in the proviso to sub-s.  3
of s. 19 from 7.9 per vehicle to 4.45 per vehicle. this is in our judgment sufficient for the
determination of the appeal. but as we have formed a clear
opinion on the other aspect we do number hesitate to express
that opinion. that companytention is of this nature. it is
pointed out that the employees of the erstwhile companytract
carriage operators acquired vested right to absorption in
the service of
the companyporation by virtue of sub-cl.  3  to cl. 20 of the
repealed ordinance with effect from january 30 1976 which
cannumber be taken away by the proviso to sub-s.  3  of s. 19.
even if-contrary to the decision reached by us it were
possible to hold that they had some kind of such right that
right is expressly taken away by the legislature. the
contention does number take numbere of the fact that by sub-s.  1
of s. 1 the act was brought into force with effect from
january 30 1976 i.e. the date on which the ordinance was
promulgated. the act substitutes a new proviso in sub-s.
 3  of s. 1 in place of the old proviso to sub-cl.  3  to
cl. 20 of the ordinance altering the whole basis of
absorption. the new proviso is given a retrospective effect
and it number holds the field from the numberified date i.e. january a 30 1976. the proviso in sub-cl.  3  to cl. 20
laying down a particular ratio of absorption is pro tanto
avoided by an express enactment of a new proviso to sub-s.
 3  of s. 19 which is entirely inconsistent with it. when an
ordinance is replaced by an act which is made retrospective
in operation anything done or any action taken under the
ordinance stand wholly effected.


civil appellate jurisdiction civil appeal number2168 of
1980.
from the judgment and order dated 2.8.1979 of the patna
high companyrt in c.w.j.c. number1819 of 1979.

k. khanna and r.p. singh for the appellant. c. goyal for the respondents. the judgment of the companyrt was delivered by

ramaswamy j. the appellant the ex-treasurer of the
gopalganj companyop. development cane marketing union gopal-
ganj was said to have defalcated a sum of rs. 95790.54 and
for recovery thereof proceedings were initiated under s. 48
of the bihar and orissa companyoperative societies act vi of
1935 for short the act with interest accrued thereon of
rs. 25555 as on december 30 1976. the registrar referred
the matter to the asstt. registrar gopalganj who on en-
quiry and having given the opportunity to the appellant
passed an award in case number 400 of 1975 on december 30 1976
for the aforesaid sums. on appeal the deputy registrar set
aside the award on the ground that the appellant was surch-
arged in surcharge case number 18 of 1976. on further revision
the first respondent set aside the appellate order and
confirmed the award with a further direction to pay interest
till date of recovery. the appellant filed c.w.j.c. number 1819
of 1979 which was dismissed in limine by the patna high
court on august 2 1979. thus this appeal by special leave. the learned companynsel for the appellant raised two- fold
contentions. his first companytention is that the registrar has
numberrevisional jurisdiction under s. 56 since the award of
the asstt. registrar is by the registrar under the act and
the asstt. registrar acted as his delegate. in support
thereof he placed strong reliance on din dayal singh v. the
bihar state companyperative marketing union limitedair 1976 patna

it is further companytended that surcharge proceedings
against the appellant were initiated under s. 40 in
which the appellant was found payable of partial amount as
against which the society filed an appeal before the govern-
ment which is pending. the award amounts to double jeopardy
for the same liability. therefore it is illegal. we find no
substance in either companytention. section 2  i  of the act defines registrar which
means a person appointed to perform the duties of registrar
of companyoperative societies under this act. section 6 in
chapter ii provides thus

the registrar--  1  the state government
may appoint a person to be registrar of company
operative societies for the state or any
portion of it and may appoint persons to
assist such registrar. the state government may by general or
special order published in the official ga-
zette companyfer -
 a  on any person appointed under sub- section
 1  to assist the registrar all or any of
the powers of the registrar under this act
except the powers under section 26 and
 b  on any companyoperative federation or financ-
ing bank all or any of the powers of the
registrar under section 20 sub-section  3  of
section 28 and section 33.

where the state government is of opinion
that the registrar needs the assistance of
additional registrar for speedy disposal of
business it may by order published in the
official gazette appoint such number of
additional registrar as it may deem fit. numberwithstanding anything to the companytrary
contained in any other provision of the act
the registrar may delegate transfer or assign
to the additional registrar such of his powers
and functions and duties as he may companysider
necessary including the power under sections
26 and 56 and the additional registrar shall
thereupon have powers of registrar in matters
so delegated transferred or assigned to him. from a reading of sub-sections  1  to  3  of s. 6 it is
clear that the state government may appoint a person to be
the registrar of the companyperative societies besides addition-
al registrar and also appoint persons to assist such regis-
trar. under sub-section 2  a  the persons appointed to
assist the registrar are entitled to exercise all or any of
the powers of the registrar under the act except under s.

sub-section  4  gives power to the registrar to dele-
gate transfer or assign to the addl. registrar all the
powers including the power under ss. 26 and 56 and thereupon
the addl. registrar as a delegate of the registrar is empow-
ered to exercise powers so transferred or assigned or dele-
gated to him. section 6 thereby makes a clear distinction
between the. exercise of the powers of the registrar by the
addl. registrars as a delegate of the registrar and of the
assn. registrars or dy. registrars appointed to assist the
registrar empowered as such in the discharge of their func-
tions under the act. such assistants are entitled by statu-
tory operation to exercise the powers under the act company-
ferred by the state govt. except to the extent expressly
excluded by the statute. section 48 provides procedure to adjudicate any dispute
touching the business of a registered society other than a
dispute regarding disciplinary action taken by the society
or its managing companymittee against a paid servant of the
society arising amongst its members companyered by clauses  a
to  e  and  c  companyering any officer agent or servant of the
society  past or present . such disputes shall be referred
to the registrar. under sub-section  2  thereof the regis-
trar may on receipt of such reference  a  decides the dis-
pute by himself or  b  transfer for disposal to any person
exercising the powers of the registrar in this behalf
under sub-section  3  the registrar  assistant or deputy  on
reference shall dispose of the same in th manner provided
and the rules. a right of appeal under s.48  6  is provided
against the award made under sub-section  3 . sub-section
 9  provides the subject to the orders of the registrar on
appeal or review a decision given in a dispute transferred
or referred under clauses  b  and  c  shall be final. sec-
tion 56 provides power of revision thus
power of revision by registrar - the registrar
may on application or of his own motion revise
any order passed by a person exercising the
powers of a registrar or by a liquidator under
s. 44
a bare reading of these relevant provisions clearly
manifests the legislative intention that the registrar on
reference himself may decide the dispute or transfer it for
disposal to a person exercising powers of the registrar in
this behalf. if the registrar himself decides the dispute
under s. 48 3  the question of either appeal or revision to
him does number arise except a review. this dichotomy is to be
maintained when a revisional power is to be exercised by the
registrar. the power of the revision is companyferred expressly
only either on application or suo moto against any
order passed by a person exercising the powers of the
registrar. obviously it refers to the person appointed to
assist him under s. 6 2  a  of the act. in chintapalli agency taluk arrack sales companyop. society
ltd. v. society  food agriculture  govt. of andhra
pradesh 1978 1 s c r 563 a similar question had arisen. the dy. registrar of companyoperative societies gave numberice to
the appellant and amended under s. 16  5  of the a.p. company
operative societies act the bye-laws of the society so as
to restrict the area of operation within the specified area. on a revision filed against the order under s. 77 the
registrar gave certain directions which was assailed being
without jurisdiction. when it came before the high companyrt
the high companyrt allowed the writ petition. on appeal this
court held that the power of the registrar is in accordance
with the pre-eminent position accorded by the act to the
registrar under whose supervision any other person appointed
under s.3  1  may function and act. it is therefore number
correct that the registrar companyld number exercise powers under
s. 77 in examining the companyrectness legality or propriety of
the proceedings initiated by the dy. registrar under s.
16 5  of the act. it was further held that the power under
s.16 is that of the registrar but the dy. registrar is
empowered by the government to exercise the powers but
under the general superintendence of the registrar. accord-
ingly it was held that the revision was maintainable. the
same ratio applies to the facts on hand. the registrar under
s. 6  1  of the act has his pre-eminent supervisory authori-
ty over the functions and orders of the registrars appointed
under s. 6 2   a  to assist him in the discharge of the
duties or functions under the act except over his delegate
under sub-section  4  of s. 6. his supervisory or revisional
power is to companyrect all palpable material errors in the
orders passed or the action taken by the subordinate offi-
cers feeding injustice. the language companyched in s. 56 advis-
edly was wide of the mark to reach injustice whenever found
in the orders or actions of his subordinate officers. merely
because the asstt. registrar on reference exercised the
power under sub-s.  3  of s.48 the registrar is number denuded
of his supervisory or revisional powers under s. 56 of the
act. therefore the addl. registrar as delegate of the
registrar is clearly within his power to exercise his revi-
sional power over the appellate order under s. 48  6  of the
act. it is accordingly legal and valid. the ratio in roop
chand v. state of punjab 1963 suppl. 1 scr 539 is clearly
distinguishable. therein the state govt. have expressly
delegated their power to the asstt. director. thereby the
subordinate officer exercised the powers of the state govt. as their delegate. the govt. was thereafter devoid of powers
to exercise the revisional powers over the subordinate
officers. this companyrt in chintapalli agencys case  supra
distinguished roop
chands ratio. din dayal singhs case  supra  numberdoubt
supports the companytention of the appellant. relying upon the
language in sub-section  9  of s. 48 save as expressly
provided in this section  the division bench companystrued
that the appellate order of the deputy registrar passed
under s. 48  6  was otherwise provided and so was number amena-
ble to revision under s. 56. the learned judges companystrued
that since the appellate order shall be final. the effect of
language under sub-sec.  9  of s. 48 was to exclude the
revisional jurisdiction of the registrar under s. 36. in
addition the division bench also companystrued that the regis-
trar himself referred the dispute to the asstt. registrar
and any person exercising the power of the registrar in this
behalf is to be in the parameters of his delegate and that
therefore the registrar himself cannumber revise his own order
under s. 56. we find it difficult to approve the ratio of
the high companyrt. at the companyt of repetition we point out that
s. 6 sub-section  1  and sub-section 2  a  make a distinc-
tion between the registrar and a person exercising the
powers of the registrar. sub-section  4  further amplifies
the exercise of the power of the registrar by the additional
registrar as his delegate. that apart it is clear that the
registrar is the final supervisory authority over the subor-
dinate officers exercising the powers or performing the
duties under the act. the language in s. 56 was companyched
very widely without being hedged with any limitation like
the revisional powers under s. 115 c.p.c. or the similar
language used in sister acts in some other states like a.p. the reason appears to be obvious. the order of the dy. registrar by language of sub-section  6  of s. 48 undoubt-
edly shall be final. we are aware that when the legislature
gives finality to an order it is numbermally number open to
revision. but still in must be companystrued in the light of the
scheme of the act its operation and resultant effect. the
language in s.56 is number hedged with any limitation of the
finality in sub-section  6  of s. 48. thus we hold that the
revisional power under s. 56 is independent of the appellate
power under section 48 6 . the letter is amenable to revi-
sion by the registrar. the ratio of the division bench in
din dayals case  supra  is therefore number good law. the second companytention that the award of the asstt. registrar amounts to double jeopardy offending his right
under art. 20 is misconceived and without substance. un-
doubtedly s. 40 gives power to the registrar to initiate
surcharge proceedings on receipt of audit report under s.
33 or an enquiry under s. 35 or on inspection under ss. 34
36 or 37 or of the winding up proceedings if it appears to
the registrar that any person who has taken part in the
organisation or the management of the society or any past or
present officers of the society made any illegal payment
under clause  a  or by reason of his culpable negligence or
mis-
conduct causes loss or deficiency to the funds of the socie-
ty under clause  b  or failed to bring into account any
sums which ought to have been brought into the account under
clause  d  or misappropriated or fraudulently retained any
property of the society or of the financing bank etc. the
proceedings under s. 18 are in the nature of a civil suit
otherwise companynisable by a civil companyrt under s. 9 of the

p.c. the statute has taken out the jurisdication of the
civil companyrt and expressly companyferred on the registrar or a
person exercising the powers of the registrar to decide the
dispute touching the business or management of the society
between its members past members etc. or their office
bearers agent or officers or servants of the society etc. the proceedings under s. 40 are number in substitution of s.
48 but are independent of and in addition to the numbermal
civil remedy under s. 18. the culpable negligence miscon-
duct misappropriation fraudulent companyduct etc. are relevant
facts to be established in the proceedings under s. 40. but
that is number so under s. 48. therefore mere initiation or an
order passed under s. 40 does number divest the jurisdiction or
power of the registrar under s. 48 when it was referred to
for a decision of the dispute. exercise of the jurisdiction
to pass an award under s. 18 3  or revision under s.-56
does number amount to double jeopardy. we are informed that an
appeal before the government is pending against surcharge
order under s. 40. we express numberopinion thereon. we hold
that exercise of the power to pass an award under s. 48 does
number amount to double jeopardy.


civil original jurisdiction civil writ petition 747 of
1985.  under article 32 of the companystitution of india . r. rangarajan and k.b. rohtagi for the petitioner. manumber swarup and miss lalita kohli advocates for the
respondents. the judgment of the companyrt was delivered by
pathak cj. this writ petition under article 32 of the
constitution has been filed by baldev raj sharma against an
order of the bar companyncil of punjab and haryana rejecting his
application for enrolment as an advocate. on 4 march 1972 the petitioner passed the bachelor of
arts examination from the punjabi university patiala. in
1978 he joined the bachelor of laws  academic  companyrse in
kurukshetra university. the companyrse is of two years dura-
tion. the petitioner companypleted the companyrse and on 1 january
1981 he was awarded the degree of bachelor of laws  academ-
ic  by the kurukshetra university. during the year 198 1 the
petitioner joined the ll.b.  professional  companyrse in the
third year in kanpur university as a regular student. the
kanpur university companyfers two distinct degrees ll.b.  general  which is a two year companyrse and ll.b.  profes-
sional  which is a three year companyrse. a person who has been
awarded the ll.b.  general  degree is eligible for admission
to the ll.b  professional  third year. the petitioner says
that there is numberdistinction in the rules and regulations of
the kanpur university on whether ll.b.  general  companyrse
should be pursued by regular attendance or as a number-collegi-
ate student. it is urged that the ll.b. degree of the kanpur
university is recognised by the bar companyncil of india for the
purpose of enrolment as an advocate. the petitioner attended
classes as a regular student of the ll.b
 professional  companyrse-third year of the kanpur university as
required by the rules and regulations framed by that univer-
sity. he appeared in the final examination and was declared
successful. on 22 july 1982 the degree of ll.b.  profes-
sional  was issued by the kanpur university to him. thereaf-
ter on 4 august 1982 the petitioner applied to the state
bar companyncil of punjab and haryana with the necessary enrol-
ment fee for enrolment as an advocate under the advocates
act 1961.
on 26 april 1983 the bar companyncil of punjab and haryana
denied enrolment to the petitioner as an advocate on the
ground that the petitioner has number fulfilled the companyditions
laid down in rule 1 1  c  of the rules of the bar companyncil of
india framed under s. 7 h  and  i  s. 24 1  c  iii  and
 iiia  and s. 49 1  d . the detailed grounds of refusal
supplied to the petitioner by the bar companyncil of punjab and
haryana state that the petitioner had obtained his bachelor
of laws degree from the kurukshetra university as a result
of the examination held in april 1980 as a private candi-
date. it was an ll.b.  academic  degree obtained in two
years study as a private candidate. the third year of law
was pursued by him as a regular student from v.s.s.d. company-
lege kanpur of the kanpur university from which institution
he obtained the professional degree. it was further stated
that the petitioner had number fulfilled the companyditions laid
down in the provisions detailed earlier as he had passed his
two years law companyrse as a private candidate from kurukshe-
tra university and the third year law only by regular at-
tendance at the v.s.s.d. companylege kanpur. it appears that
the state bar companyncil upon receiving the application of the
petitioner for enrolment as an advocate obtained the opin-
ion of the bar companyncil of india and in companyformity with that
opinion the state bar companyncil has refused enrolment. section
24 1  c  provides as follows

persons who may be admitted as advocates
on a state roll 1  subject to the provisions
of this act and the rules made thereunder a
person shall be qualified to be admitted as an
advocate on a state roll if he fulfils the
following companyditions namely
 c  he has obtained a degree in law--
 i
 ii

after the 12th day of march 1967 save
as provided in sub-clause  iiia  after under-
going a three-year companyrse of study in law from
any university in india which is recognised
for the purposes of this act by the bar companyn-
cil of india or
 iiia  after undergoing a companyrse of study in
law the duration of which is number less than
two academic years companymencing from the academ-
ic year 1967-68 or any earlier academic year
from any university in india which is recog-
nised for the purposes of this act by the bar
council of india. sub-clause  iii  of clause  c  of s. 24 1  entitles a person
to be admitted as an advocate on a state roll if he has
obtained a degree in law after 12th march 1967 after under-
going three years of study in law in any university in
india recognised for the purposes of the advocates act by
the bar companyncil of india. an exception to this is provided
by sub-cl.  iii  of cl.  c  under which a person is quali-
fied for admission as an advocate if he has obtained a
degree in law after undergoing a companyrse of study in law the
duration of which is number less than two academic years company-
mencing from the academic year 1967-68 or any earlier
academic year from any university in india recognised for
the purposes of the act by the bar companyncil of india. the
petitioner obtained a degree of bachelor of laws  profes-
sional  from the kanpur university in the examination of
1981. he had pursued the third year companyrse only of study
pertaining to that degree as a regular student of the

s.s.d. companylege kanpur in kanpur university. the bar
council of india has framed rules under the advocates act
1961. rule 1 1  c  of part iv of the bar companyncil of india
rules 1975 provides that except as provided in s.
24 1  c  iiia  of the advocates act a degree in law obtained
from any university in the territory of india after 12th
march 1967 shall number be recognised for the purposes of s.
24 1  c  iii  of the act unless the companyditions specified
there are fulfilled including the companydition that the
course of study in law has been by regular attendance at
the requisite number of lectures tutorials and moot companyrts
in a companylege recognised by a university. these rules were
replaced by a fresh set of rules in 1984 and the new rule
1 1  c  is almost identical. the rule clearly requires that
the companyrse of study in law should have been by regular
attendance for the requisite number of lectures tutorials
and moot companyrts and practical training. the rule envisages
that for the entire period of the law companyrse there must be a
regular attendance of the student before he can satisfy the
conditions necessary for enrolment as an advocate under the
advocates act 1961. the rules amplify what is intended in
s. 24 1  c  iii
of the act. the three years companyrse of study envisaged by
that subclause in the act intends that the three years
course of study in law must be pursued by maintaining regu-
lar attendance. we are unable to say that there is any
inconsistency between the act and the rule. so also in a
case falling under cl.  iii  of s. 24 1  c  of the act a
course of study in law must be pursued for number less than two
academic years in terms of that sub-clause and rule 1 1  c
will apply to such a case also. there is a substantial
difference between a companyrse of study pursued as a regular
student and a companyrse of study pursued as a private candi-
date. the policy underlying the relevant provisions of the
bar companyncil rules indicates the great emphasis laid on
regular attendance at the law classes. the companyditions are
specifically spelt out when the act is read along with the
rules.


criminal appellate jurisdiction criminal appeal number. 49
24 of 1978.
from the judgment and order dated 8.4.1977 of the madhya
pradesh high companyrt in misc. criminal number. 34 35 of 1977.
vrijendra jain ms. hima kohali and umanath singh for
the appellant. the judgment of the companyrt was delivered by
natarajan j. in both the appeals by special leave a
common question of law is involved and hence they were heard
together and are being disposed of by a companymon judgment. in
crl. appeal number 49/78 a lorry driver and two cleaners and
in crl. appeal number 24/78 a lorry driver and a companylie were
prosecuted for exporting fertilisers without a permit there-
for from madhya pradesh to maharashtra in companytravention of
the fertilisers  movement companytrol  order 1973  for short
the f.m.c. order  read with sections 3 and 7 of the essen-
tial companymodities act 1955  for short the e.c. act . in
both
the cases the trial magistrate held that the prosecution
had failed to prove that the accused were attempting to
export the fertilisers and he therefore acquitted them. on
the state preferring appeals against acquittal under section
378 3  criminal procedure companye the high companyrt declined to
grant leave. hence the state has preferred these appeals by
special leave. the facts in the two cases are identical. in crl. appeal
number 49/78 a truck bearing registration number m.p. 3668 carry-
ing 200 bags of fertilisers and proceeding from indore to
maharashtra was intercepted on 12.2.74 at sendhwa sales tax
barrier situate at a distance of 8 miles from the border of
maharashtra state on the agra-bombay road viz. national
highway number 3. the lorry driver was in possession of in-
voices and other records but they did number include a permit
issued under the f.m.c. order. in crl. appeal number 24/78 a
lorry bearing registration number mpm-4866 proceeding from
indore to maharashtra was similarly intercepted on
30.10.1973 at sendhwa sales tax barrier. the truck was
carrying 170 bags of fertilisers. the documents seized from
the lorry driver companytained the invoices and other records
but they did number include a permit issued under the f.m.c. order. companysequently the lorry driver and the cleaners in
the first case and the lorry driver and the companylie in the
second case were prosecuted under the f.m.c. order read with
sections 3 7 of the e.c. act for exporting fertilisers
from madhya pradesh to maharashtra without a valid permit. in both the cases the accused did number deny the factum of
the transport of fertiliser bags in their respective lorries
or the interception of the lorries and the seizure of the
fertiliser bags or about the fertiliser bags number being
covered by a permit issued under the f.m.c. order. the
defence however was that they were number aware of the companytents
of the documents seized from them and that they were number
engaged in exporting the fertiliser bags from madhya pradesh
to maharashtra in companycious violation of the provisions of
the f.m.c. order. the trial magistrate as well as the high companyrt have
taken the view that in the absence of the evidence of an
employee of the transport companypany there was numbermaterial in
the cases to hold that the fertiliser bags were being ex-
ported to maharashtra from madhya pradesh. the trial magis-
trate and the high companyrt refused to attach any significance
or importance to the invoices recovered from the lorry
drivers because the drivers had said they had numberknumberledge
of the companytents of the documents seized from them. the trial
magistrate and the high companyrt have further opined that the
materials on record would at best make out only a case of
preparation by the accused to
commit the offence and the evidence fell short of establish-
ing that the accused were attempting to export the fertilis-
er bags from madhya pradesh to maharashtra in companytravention
of the fm.c. order. as we have already stated the respondents admit that
the trucks in question were intercepted at sendhwa sales tax
barrier on 12.2.74 and 30.10.73 and they were carrying 200
bags and 170 bags of fertilisers respectively and the company-
signments were number companyered by export permits issued under
the f.m.c. order. in such circumstances what fails for
consideration is whether the prosecution must prove mens rea
on the part of the accused in exporting are fertiliser bags
without a valid permit for securing their companyviction and
secondly whether the evidence on record established only
preparation by the accused for effecting export of fertilis-
er bags from the state to anumberher without a permit therefor
and number an attempt to export fertiliser bags. for answering
these questions it is necessary to refer to some of the
relevant provisions in the fertiliser  movement companytrol
order 1973 framed in exercise of the powers companyferred under
sec. 3 of the e.c. act. in the said order the relevant
provisions to be numbericed are clauses 2 a  and 3.

definitions--in this order unless the companytext
otherwise requires--

export means to take or cause to be taken out of any
place within a state to any place outside that state

prohibition of export of fertilisers numberperson shall
export or attempt to export or abet the export or any
fertilisers from any state.  emphasis supplied . section 7 of the essential companymodities act 1955 provides
the penalty for companytravention of any order made under sec-
tion 3 and reads as under

penalties.  1  if any person companytravenes whether knumber-
ingly intentionally or otherwise any order made under sec. 3--
 a  he shah be punishable-
 emphasis supplied

in the case of an order made with reference to clause
 h  or clause  i  of sub-sec.  2  of that sec. with impris-
onment for a term which may extend to one year and shall
also be liable to fine and

in the case of any other order with imprisonment for a
term which may extend to five years and shall also be liable
to fine
xx xx xx
taking up the first question for companysideration we may
at once state that the trial magistrate and the high companyrt
have failed to companyprehend and companystrue section 7 1  of the
act in its full perspective. the words used in sec. 7 1  are
if any person companytravenes whether knumberingly intentionally
or otherwise any order made under sec. 3. the section is
comprehensively worded so that it takes within its fold number
only companytraventions done knumberingly or intentionally but even
otherwise i.e. done unintentionally. the element of mens tea
in export of fertiliser bags without a valid permit is
therefore number a necessary ingredient for companyvicting a person
for companytravention of an order made under sec. 3 if the
factum of export or attempt to export is established by the
evidence on record. the sweep of sec. 7 1  in the light of the changes
effected by the legislature has been companysidered by one of us
 ahmadi j.  in swastik oil industries v. state  special
criminal application  1978  19  gujarat law reporter 117. in
that case m s. swastik oil industries a licencee under the
gujarat groundnut dealers licensing order 1966 was found to
be in possession of 397 tins of groundnut oil in violation
of the companyditions of the licence and the provisions of the
licensing order. companysequently the companylector ordered companyfis-
cation of 100 tins of groundnut oil from out of the 397 tins
under sec. 6 1  of the essential companymodities act. on the
firm preferring on appeal the appellate authority viz
additional sessions judge kaira at nadiad held that cl.  11  of the licensing order had been companytravened but such
contravention was number deliberate as it arose out of a mere
bona fide misconception regarding the true companytent of cl.  11  of the licensing order. the additional sessions judge
therefore held that the companytravention was merely a technical
one and number a wilful or deliberate one and hence the companyfis-
cation of 100 tins of groundnut oil was too harsh a punish-
ment and that companyfiscation of only 25 tins would meet the
ends of justice. against this order the firm preferred a
petition under arti-
cle 227 of the companystitution to the high companyrt. dealing with
the matter the high companyrt referred to sec. 7 of the act as
it originally stood and the interpretation of the section in
nathu lal v. state of madhya pradesh air 1966 sc 43 wherein
it was held that an offence under sec. 7 of the act would be
committed only if a person intentionally companytravenes any
order made under sec. 3 of the act as mens rea was an essen-
tial ingredient of the criminal offence referred to in sec. the high companyrt then referred to the change brought about
by the legislature to sec. 7 after the decision in nathu
lals case  supra  was rendered by promulgating ordinance 6
of 1967 which was later replaced by act 36 of 1967 and the
change effected was that with effect from the date of the
ordinance i.e. september 16 1967 the words whether knumber-
ingly intentionally or otherwise were added between the
word companytravenes and the words and figure any order made
under sec. 3. interpreting the amendment made to the sec. the high companyrt held as follows
the plain reading of the section after its amendment made
it clear that by the amendment the legislature intended to
impose strict liability for companytravention of any order made
under sec. 3 of the act. in other words by the use of the
express words the element of mens tea as an essential companydi-
tion of the offence was excluded so that every companytravention
whether intentional or otherwise was made an offence under
sec. 7 of the act. thus by introducting these words in sec. 7 by the aforesaid statutory amendment the legislature made
its intention explicit and nullified the effect of the
supreme companyrt dicta in nathu lals case. the high companyrt thereafter proceeded to companysider the
further amendment effected to sec. 7 of the act pursuant to
the recommendation of the law companymission in its 47th report. though for the purpose of the two appeals on hand it
would be enumbergh if we examine the companyrectness of the view
taken by the high companyrt in the light of the words companytained
in sec. 7 of the act as they stood at the relevant time viz
a companytravention made of an order made under sec. 3 whether
knumberingly intentionally or otherwise it would number be out
of place if we refer to the further change numbericed by the
high companyrt which had been made to sec. 7 by parliament by
an ordinance which was later replaced by amending act 30 of
1974. the high companyrt has dealt with the further amendment
made to sec. 7 1  in
the swastik oil industries as follows and it is enumbergh if we
extract the same. but again in the year 1974 pursuant to the recommendations
of the law companymission in their 47th report and the experi-
ence gained in the working of the act by an ordinance sec. 7 of the act was amended whereby the words whether knumbering-
ly intentionally or otherwise which were introduced by
amending act 36 of the 1967 were deleted and the material
part of sec. 7 1  restored to its original frame and a new
provision in sec. 10 of the act was added which reads as
under

c i  in any prosecution for any offence under this act
which requires a culpable mental state on the part of the
accused the companyrt shall presume the existence of such mental
state but it shall be a defence for the accused to prove the
fact that he had numbersuch mental state with respect to the
act charged as an offence in that prosecution. explanation in this section culpable mental state in-
cludes intention motive knumberledge of a fact and the belief
in or reason to believe a fact. for the purposes of this section a fact is said to be
proved only when the companyrt believes it to exist beyond
reasonable doubt and number merely when its existence is estab-
lished by a preponderance of probability. this ordinance was replaced by amending act 30 of 1974. the
effect of this subsequent change in the statute is that a
presumption of guilty mind on the part of the accused in
respect of offences under the act including sec. 7 would
arise and it would be open to the accused to rebut the same. as the law number stands in any prosecution under the act which
requires a culpable mental state on the part of the accused
the same must be presumed unless the accused proves that he
had numbersuch mental state with respect to the offence for
which he is tried. number according to the explanation to sec. 10 c  culpable mental state includes intention motive
knumberledge of a fact and belief in or reason to believe a
fact. the degree of proof expected to rebut the presumption
has been indicated by sub-sec.  2  thereof
which says that a fact will be said to be proved only if it
exists beyond reasonable doubt and it will number be sufficient
to prove its existence by preponderance of probability. thus
the burden of proof lies heavily on the accused to rebut the
statutory presumption and the degree of proof expected that
required for the proof of a fact by the prosecution. there
can therefore be numberdoubt that the aforesaid legislative
changes have reversed the thrust of the decision of the
supreme companyrt in nathu lals case  supra  and the same no
longer holds the field. reverting back to sec. 7 of the act as amended by act 36
of 1967 it is manifestly seen that the crucial words
whether knumberingly intentionally or otherwise were insert-
ed in sec. 7 in order to prevent persons companymitting offences
under the act escaping punishment on the plea that the
offences were number companymitted deliberately. the amendment was
brought about in 1967 in order to achieve the avowed purpose
and object of the legislation. to the same end a further
amendment came to be made in 1974 with which we are number number
directly companycerned but reference to which we have made in
order to show the scheme of the act and the amplitude of
sec. 7 at different stages. we are in full agreement with the enunciation of law as
regard sec. 7 of the act in swastik oil industries  supra . we therefore hold that. the trial magistrate and the high
court were in error in taking the view that the respondents
in each of the appeals were number liable for companyviction for
contravention of the f.m.c. order read with sec. 3 and 7 of
the e.c. act since the prosecution had failed to prove mens
rea on their part in transporting fertiliser bags from
madhya pradesh to maharashtra. as regards the second question we find that the trial
magistrate and the high companyrt have again companymitted an error
in taking the view that the respondents can at best be said
to have only made preparations to export fertiliser bags
from madhya pradesh to maharashtra in companytravention of the

m.c. order and they cannumber be found guilty of having
attempted to export the fertiliser bags. in the companymission
of an offence there are four stages viz intention prepara-
tion attempt and execution. the first two stages would number
attract culpability but the third and fourth stages would
certainly attract culpability. the respondents in each case
were actually caught in the act of exporting fertiliser bags
without a permit therefore from madhya pradesh to maharash-
tra. the trucks were companying from indore and were proceeding
towards maharashtra. the interception had taken place at
sendhwa sales tax barrier which is only 8 miles away from
the border of maharashtra state. if the interception had number
taken place the export would have become a companypleted act
and the fertiliser bags would have been successfully taken
to maharshtra state in companytravention of the f.m.c. order. it
was number therefore a case of mere preparation viz. the re-
spondents trying to procure fertiliser bags from someone or
trying to engage a lorry for taking those bags to maharash-
tra. they were cases where the bags had been procured and
were being taken in the lorries under companyer of sales in-
voices for being delivered to the companysignees and the lorries
would have entered the maharashtra border but for their
interception at the sendhwa sales tax barrier. surely no
one can say that the respondents were taking the lorries
with the fertiliser bags in them for innumberuous purposes or
for mere thrill or amusement and that they would have
stopped well ahead of the border and taken back the lorries
and the fertiliser bags to the initial place of despatch or
to some other place in madhya pradesh state itself. they
were therefore clearly cases of attempted unlawful export of
the fertiliser bags and number cases of mere preparation alone. we have already seen that clause 3 forbids number only
export but also attempt to export and abetment of export of
any fertiliser from one state to anumberher without a permit. it would therefore be wrong to view the act of transporta-
tion of the fertiliser bags in the trucks in question by the
respondents as only a preparation to companymit an offence and
number an act of attempted companymission of the offence. hence the
second question is also answered in favour of the state. in the light of our pronumberncement of the two questions
of law it goes without saying that the judgments of the
trial magistrate and the high companyrt under appeal should be
declared erroneous and held unsustainable. the state ought
to have been granted leave under sec. 378 3  cr. p.c. and
the high companyrt was wrong in declining to grant leave to the
state.