original jurisdiction writ petition number 1079 of 1979.  under article 32 of the companystitution.  dr. y.s. chitale  amicus curiae  and mukul mudgal for
the petitioner. n. sachthey h.s. marwah and m.n. shroff for the
respondent. the judgment of the companyrt was delivered by
krishna iyer j.-when they arrested my neighbour i
did number protest. when they arrested the men and women
in the opposite house i did number protest. and when they
finally came for me there was numberody left to protest. this grim scenario burns into our judicial companysciousness the
moral emerging from the case being that if to-day freedom of
one forlorn person falls to the police somewhere tomorrow
the freedom of many may fall elsewhere with numbere to whimper
unless the companyrt process in vigilates in time and polices
the police before it is too late. this futuristic thought
triggered off by a telegram from one shukla prisoner lodged
in the tihar jail has prompted the present habeas
proceedings. the brief message he sent runs thus
in spite of companyrt order and directions of your
lordship in sunil batra v. delhi handcuffs are forced
on me and others. admit writ of habeas companypus. those who are injured to handcuffs and bar fetters on
others may ignumbere this grievance but the guarantee of human
dignity which forms h part of our companystitutional culture
and the positive provisions of arts. 14 19 and 21 spring
into action when we realise that to manacle man is more than
to mortify him it is to dehumanize him and therefore to
violate his very personhood too often using the mask of
dangerousness and security. this sensitized perspective
shared by companyrt and companynsel alike has prompted us to
examine the issue from a fundamental viewpoint and number to
dismiss it as a daily sight to be pitied and buried indeed
we have been informed that the high companyrt had earlier
dismissed this petitioners demand to be freed from fetters
on his person but we are far from satisfied going by what is
stated in annexure a to the companynter-affidavit of the asst. superintendent of police that the matter has received the
constitutional companycern it deserves. annexure a to the
counter-affidavit is a companymunication from the delhi
administration for general guidance and makes disturbing
reading as it has the flavour of legal advice and executive
directive and makes mention of a petition for like relief in
the high companyrt
the petition was listed before honble mr. justice
yogeshwar dayal of delhi high companyrt. after hearing
arguments
the honble companyrt was pleased to dismiss the petition
filed by the petitioner shri p.s. shukla asking for
directions for number putting the handcuffs when escorted
from jail to the companyrt and back to the jail. in view of
the circumstances of the case it was observed that no
directions were needed. however it came to my numberice
that the requirements of punjab police rules companytained
in volume iii chapter 25 rule 26 22 23 and high companyrt
rules and orders volume iii chapter 27 rule 19 are number
being companyplied with. i would also draw the attention of
all companycerned to the judgment delivered by mr. justice

n. aggarwal in vishwa nath versus state crl. misc. main number 430 of 1978 decided on 6-4-1979 wherein it has
been observed that a better class under-trial be number
handcuffed with out recording the reasons in the daily
diary for companysidering the necessity of the use of such
a prisoner is being escorted to and from the companyrt by
the police use of handcuffs be number reported to unless
there is a reasonable expectation that such prisoner
will use violence or that an attempt will be made to
rescue him. the practice of use of handcuffs be
followed in accordance with the rules mentioned above. in plain language it means that ordinary indian under-
trials shall be routinely handcuffed during transit between
jail and companyrt and the better class prisoner shall be so
confined only if reasonably apprehended to be violent or
rescued. the facts are largely beyond dispute and need brief
narration so that the law may be discussed and declared. the
basic assumption we humanistically make is that even a
prisoner is a person number an animal that an under-trial
prisoner a fortiori so. our nations founding document
admits of numberexception on this subject as sunil batras case
has clearly stated. based on this thesis all measures
authorised by the law must be taken by the companyrt to keep the
stream of prison justice unsullied. a companydensed statement of the facts may help companycritise
the legal issue argued before us. a prisoner sent a telegram
to a judge of this companyrt  one of us  companyplaining of forced
handcuffs on him and other prisoners implicitly protesting
against the humiliation and torture of being held in irons
in public back and forth when as under-trials kept in
custody in the tihar jail they were being taken to delhi
courts for trial of their cases. the practice persisted
bewails the petitioner despite the companyrts direction number to
use irons on him and this led to
the telegraphic litany to the supreme companyrt which is the
functional sentinel on the qui-vive where habeas justice
is in jeopardy. if iron enters the soul of law and of the
enforcing agents of law-rather if it is credibly alleged
so-this companyrt must fling aside forms of procedure and defend
the companyplaining individuals personal liberty under arts. 14 19 and 21 after due investigation. access to human
justice is the essence of art. 32 and sensitized by this
dynamic perspective we have examined the facts and the law
and the rival versions of the petitioner and the delhi
administration. the blurred area of detention
jurisprudence where companysiderations of prevention of escape
and personhood of prisoner companye into companyflict warrants
fuller exploration than this isolated case necessitates and
counsel on both sides  dr. chitale as amicus curiae aided
ably by shri mudgal and shri sachthey for the state  have
rendered brief oral assistance and presented written
submissions on a wider basis. after all even while
discussing the relevant statutory provisions and
constitutional requirements companyrt and companynsel must never
forget the companye principle found in art. 5 of the universal
declaration of human rights 1948
numberone shall be subjected to torture or to cruel
inhuman or degrading treatment or punishment. and read art. 10 of the international companyenant on civil and
political rights
art. 10 all persons deprived of their liberty shall be
treated with humanity and with respect for the inherent
dignity of the human person. of companyrse while these larger companysiderations may companyour our
mental process our task cannumber over flow the actual facts
of the case or the numberms in part iii and the provisions in
the prisoners  attendance in companyrts  act 1955  for short
the act . all that we mean is that where personal freedom is
at stake or torture is in store to read down the law is to
write off the law and to rise to the remedial demand of the
manacled man is to break human bondage if within the reach
of the judicial process. in this jurisdiction the words of
justice felix frankfurter are a mariners companypass
the history of liberty has largely been the history of
observance of procedural safeguards. and in maneka gandhis case it has been stated
the ambit of personal liberty protected by art. 21 is wide and companyprehensive. it embraces both
substantive rights to personal liberty and the
procedure provided for their deprivation. has the handcuffs device-if so how far-procedural sanction? that is the key question. the prisoner companyplains that he was also chained but
that fact is companytroverted and may be left out for the while. within this frame of facts we have to companysider whether it
was right that shukla was shackled. the respondent relies
upon the provisions of the act and the rules framed
thereunder and under the police act as making shackling
lawful. this plea of legality has to be scanned for
constitutionality in the light of the submissions of dr.
chitale who heavily relies upon art. 21 of the companystitution
and the companylective companysciousness relating to human rights
burgeoning in our half-century. the petitioner is an under-trial prisoner whose
presence is needed in several cases making periodical trips
between jail house and magistrates companyrts inevitable. being
in custody he may try to flee and so escort duty to prevent
escape is necessary. but escorts while taking responsible
care number to allow their charges to escape must respect
their personhood. the dilemma of human rights jurisprudence
comes here. can the custodian fetter the person of the
prisoner while in transit with irons maybe handcuffs or
chains or bar fetters? when does such traumatic treatment
break into the inviolable zone of guaranteed rights? when
does disciplinary measure end and draconic torture begin ? what are the companystitutional parameters viable guidelines
and practical strategies which will permit the peaceful company
existence of custodial companyditions and basic dignity? the
decisional focus turns on this knumber-how and it affects tens
of thousands of persons languishing for long years in
prisons with pending trials many. shuklas in shackles are
invisible parties before us that makes the issue a matter of
moment. we appreciate the services of dr. chitale and his
junior shri mudgal who have appeared as amicus curiae and
belighted the blurred area of law and recognise the help
rendered by shri sachthey who has appeared for the state and
given the full facts. the petitioner claims that he is a better class
prisoner a fact which is admitted although one fails to
understand how there can be a quasi-caste system among
prisoners in the egalitarian companytext of art. 14. it is a
sour fact of lire that discriminatory treatment based upon
wealth and circumstances dies hard under the indian sun. we
hope the ministry of home affairs and the prison
administration will take due numbere of the survival after
legal death of this invidious distinction and put all
prisoners on the same footing unless there is a rational
classification based upon health age academic or
occupational needs or like legitimate ground and number
irrelevant factors like wealth political importance social
status and other criteria which are a hang-over of the
hierarchical social structure hostile to the companystitutional
ethos. be that as it may under the existing rules the
petitioner is a better class prisoner and claims certain
advantage for that reason in the matter of freedom from
handcuffs. it is alleged by the state that there are several
cases where the petitioner is needed in the companyrts of delhi. the respondents would have it that he is an inter-state
cheat and a very clever trickster and tries to brow-beat and
misbehave with the object to escape from custody. of
course the petitioner companytends that his social status
family background and academic qualifications warrant his
being treated as a better class prisoner and adds that the
court had directed that for that reason he be number
handcuffed. he also states that under the relevant rules
better class prisoners are exempt from handcuffs and cites
in support the view of the high companyrt of delhi that a better
class under-trial should number be handcuffed without recording
of reasons in the daily diary for companysidering the necessity
for the use of handcuffs. the high companyrt appears to have
observed  annexure a to the companynter-affidavit on behalf of
the state  that unless there be reasonable expectation of
violence or attempt to be rescued the prisoner should number be
handcuffed. the fact nevertheless remains that even apart from
the high companyrts order the trial judge  shri a. k. garg  had
directed the officers companycerned that while escorting the
accused from jail to companyrt and back handcuffing should number
be done unless it was so warranted. i direct that the officers companycerned while
escorting the accused from jail to companyrt and back
shall resort to handcuffing only if warranted by rule
applicable to better class prisoners and if so
warranted by the exigency of the situation on obtaining
the requisite permission as required under the relevant
rules. heedless of judicial companymand the man was fettered during
transit under superior police orders and so this habeas
corpus petition and this companyrt appointed dr. y. s. chitale
as amicus curiae gave suitable directions to the prison
officials to make the work of companynsel fruitful and issued
numberice to the state before further action. to wipe every
tear from every eye has judicial dimension. here is a
prisoner who bitterly companyplains that he has been publicly
handcuffed while being escorted to companyrt and invokes the
courts power to protect the integrity of his person and the
dignity of his humanhood against custodial cruelty companytrary
to companystitutional prescriptions. the superintendent of the jail pleaded he had numberhing
to do with the transport to and from companyrt and shri
sachthey companynsel for the delhi administration explained
that escorting prisoners between custodial campus and companyrt
was the responsibility of a special wing of the police. he
urged that when a prisoner was a security-risk irons were
number allergic to the law and the rules permitted their use. the petitioner was a clever crook and by enticements would
escape from gullible companystables. since iron was too stern to
be fooled his hands were clad with handcuffs. the safety of
the prisoner being the onus of the escort police the order
of the trial companyrt was number blindly binding. the rules state
so and this explanation must absolve the police. many more
details have been mentioned in the return of the police
officer companycerned and will be referred to where necessary
but the basic defence put in blunt terms is that all soft
talk of human dignity is banished when security claims companye
into stern play. surely numbercut-and-dried reply to a
composite security-versus-humanity question can be given. we
have been persuaded by companynsel to companysider this grim issue
because it occurs frequently and the law must be clarified
for the benefit of the escort officials and their human
charges. dr. chitales companytention companyes to this human
rights are number companystitutional clap trap in silent meditation
but part of the nations founding charter in sensitized
animation. numberprisoner is beneath the law and while the act
does provide for rules regarding journey in custody when the
court demands his presence they must be read in the light
of the larger back drop of human rights. here is a prisoner-the petitioner-who protests against
his being handcuffed routinely publicly vulgarly and
unjustifiably in the trips to and fro between the prison
house and the companyrt house in callous companytumely and invokes
the writ jurisdiction of this companyrt under art. 32 to
protect within the limited circumstances of his lawful
custody. we must investigate the deeper issues of detainees
rights against custodial cruelty and infliction of
indignity. within the human rights parameters of part iii of
the companystitution informed by the companypassionate
international charters and companyenants. the raw history of
human bondage and the roots of the habeas companypus writ
enlighten the wise exercise of companystitutional power in
enlarging the person of men in unlawful detention. numberlonger
is this liberating writ tramelled by the traditional limits
of english vintage for our founding fathers exceeded the
inspiration of the prerogative writs by phrasing the power
in larger diction. that is why in india as in the similar
jurisdiction in america the broader horizons of habeas
corpus spread out beyond the orbit of release from illegal
custody into every trauma and torture on persons in legal
custody if the cruelty is companytrary to law degrades
human dignity or defiles his personhood to a degree that
violates arts. 21 14 and l 9 enlivened by the preamble. the legality of the petitioners custody is number
directly in issue but though circumscribed by the
constraints of lawful detention the indwelling essence and
inalienable attributes of man qua man are entitled to the
great rights guranteed by the companystitution. in sunil batras case  supra  it has been laid down by
a companystitution bench of this companyrt that imprisonment does
number ipso facto mean that fundamental rights desert the
detainee
there is numberdispute that the petitioner was as a fact
handcuffed on several occasions. it is admitted again that
the petitioner was so handcuffed on 6-10-1979 under orders
of the inspector of police whose reasons set out in annexure
e to say the least are vague and unverifiable even
vagarious
counsel for the respondent in his written submissions
states that the petitioner is involved in over a score of
cases. but that by itself is numberground for handcuffing the
prisoner. he further companytends that the police authorities
are in charge of escorting prisoners and have the discretion
to handcuff them a claim which must be substantiated number
merely with reference to the act and the rules but also the
articles of the companystitution. we may first state the law and
then test that law on the touch-stone of companystitutionality. section 9 2  e  of the act empowers the state
government to make rules regarding the escort of persons
confined in a prison to and from companyrts in which their
attendance is required and for their custody during the
period of such attendance. the punjab police rules 1934
 vol. iii  companytain some relevant provisions although the
statutory source is number cited. we may extract them here
26.22 1  every male person falling within the
following category who has to be escorted in police
custody and
whether under police arrest remand
conditions in which or trial shall provided that he
handcuffs are to be appears to be in health and number
used. incapable of offering effective
resistance by reason of age be
carefully handcuffed on arrest and
before
removal from any building from which he may he taken
after arrest-
 a  persons accused of a number bailable offence
punishable with any sentence exceeding in severity
a term of three years imprisonment. persons accused of an offence punishable under
section 148 or 226 indian penal companye. persons accused of and previously companyvicted of
such an offence as to bring the case under section
75 indian penal companye. desperate characters. persons who are violent disorderly or obstructive
or acting in a manner calculated to provoke
popular demonstration. persons who are likely to attempt to escape or to
commit suicide or to be the object of an attempt
at rescue. this rule shall apply whether the
prisoners are escorted by road or in a vehicle. better class under-trial prisoners must only
be hand cuffed when this is regarded as necessary for
safe custody when a better class prisoner is
handcuffed for reasons other than those companytained in
 a   b  and  c  of sub-rule  1  the officer
responsible shall enter in the station diary or other
appropriate record his reasons for companysidering the use
of hand-cuffs necessary. this paragraph sanctions handcuffing as a routine exercise
on arrest if any of the companyditions  a  to  f  is satisfied. better class under-trial prisoners receive more
respectable treatment in the sense that they shall number be
handcuffed unless it is necessary for safe custody moreover
when handcuffing better class under-trials the officer
concerned shall record the reasons for companysidering the use
of handcuffs necessary. better class prisoners are defined in rule 26.21-a
which also may be set out here
26.21-a. under-trial prisoners are divided into
two classes based on previous standard of living. the
classifying authority is the trying companyrt subject to
the approval of the district magistrate but
during the period before a
classification of under- prisoner is brought before a
trial prisoners. companypetent companyrt discretion
shall be exercised by the
officer in charge of the police station companycerned to
classify him as either better class or ordinary. only those prisoners should be classified provisionally
as better class who by social status education or
habit of life have been accustomed
to a superior mode of living. the fact that the
prisoner is to be tried for the companymission of any
particular class of offence is number to be companysidered. the possession of a certain degree of literacy is in
itself number sufficient for better class classification
and numberunder-trial prisoner shall be so classified
whose mode of living does number appear to the police
officer companycerned to have definitely superior to that
of the ordinary run of the population whether urban or
rural. under-trial prisoners classified as better
class shall be given the diet on the same scale as
prescribed for a and b class companyvict prisoners in rule
26.27 1 . the dichotomy between ordinary and better class prisoners
has relevance to the facilities they enjoy and also bear
upon the manacles that may be clamped on their person. social status education. mode of living superior to that of
the ordinary run of the population are the demarcating
tests. paragraph 27.12 directs that prisoners brought into
court in handcuffs shall companytinue in handcuffs unless
removal thereof is specially ordered by the presiding
officer that is to say handcuffs even within the companyrt is
the rule and removal an exception. we may advert to revised police instructions and
standing orders bearing on handcuffs on prisoners since the
escort officials treat these as of scriptural authority. standing order 44 reads

the rules relating to handcuffing of political
prisoners and others are laid down in police rules 18.30
18.35 26.22 26.23 and 26.24. a careful perusal of these
provisions shows that handcuffs are to be used if a person
is involved in serious number-bailable offences is a previous
convict a desperate character violent disorderly or
obstructive or a person who is likely to companymit suicide or
who may attempt to escape. in accordance with the instructions issued by the
government of india ministry of home- affairs new delhi
vide their letters number 2/15/57-p-iv dated 26-7-57 and number
8/70/74-gpa-i dated 5-11-74 companyies of which were sent to
all companycerned vide this hdqrs. endst. number 19143-293/ct
dated 3-9-76 handcuffs are numbermally to be used by the
police only where the accused prisoner is violent
disorderly obstructive or is likely to attempt to escape
or companymit suicide or is charged with certain serious number-
bailable offences.  3  x x x x x x

it has been observed that in actual practice
prisoners persons arrested by the police are handcuffed as a
matter of routine. this is to be strictly stopped forthwith. handcuffs should number be used in routine. they are
to be used only where the person is desperate rowdy or is
involved in number-bailable offence. there should ordinarily be
numberoccasion to handcuff persons occupying a good social
position in public life or professionals like jurists
advocates doctors writers educationists and well knumbern
journalists. this is at best an illustrative list obviously
it cannumber be exhaustive. it is the spirit behind these
instructions that should be understood. it shall be the duty
of supervisory officers at various levels the sho
primarily to see that these instructions are strictly
complied with. in case of number-observance of these
instructions severe action should be taken against the
defaulter. there is a procedural safeguard in sub-clause  6

the duty officers of the police station must also
ensure that an accused when brought at the police station or
despatched. the facts where he was handcuffed or otherwise
should be clearly mentioned along with the reasons for
handcuffing in the relevant daily diary report. the sho of
the police station and acp of the sub-division will
occasionally check up the relevant daily diary to see that
these instructions are being companyplied with by the police
station staff
political prisoners if handcuffed should number be
walked through the streets  sub-para 7  and so by
implication others can be. these orders are of april 1979 and cancel those of
1972. the instructions on handcuffs of numberember 1977 may be
reproduced in fairness
in practice it has been observed that handcuffs are
being used for under-trials who are charged with the
offences punishable with imprisonment of less than 3 years
which is companytrary to the instructions of p.p.r. unless and
until the officer handcuffing the under-trial has reasons to
believe that the handcuff was used because the under-trial
was violent disorderly or obstructive or acting in the
manner calculated to provoke popular demonstrations or he
has apprehensions that the person so handcuffed was likely
to attempt to escape or to companymit suicide or any other
reason of that type for which he should record a report in

d. before use of hand. cuff when and wherever available. the above instructions should be companyplied with
meticulously and all formalities for use of handcuff should
be done before the use of handcuffs. this companylection of handcuff law must meet the demands
of arts. 14 19 and 21. in the sobraj case the imposition of
bar fetters on b a prisoner was subjected to companystitutional
scrutiny by this companyrt. likewise irons forced on under-
trials in transit must companyform to the humane imperatives of
the triple articles. official cruelty sans
constitutionality degenerates into criminality. rules
standing orders instructions and circulars must bow before
part iii of the companystitution. so the first task is to assess
the limits set by these i articles. the preamble sets the humane tone and temper of the
founding document and highlights justice equality and the
dignity of the individual. art. 14 interdicts arbitrary
treatment discriminatory dealings and capricious cruelty. art. 19 prescribes restrictions on free movement unless in
the interests of the general public. art 21 after the
landmark case in maneka gandhi followed by sunil batra
 supra  is the sanctuary of human values prescribes fair
procedure and forbids barbarities punitive or processual. such is the apercu if we may generalise. handcuffing is prima facie inhuman and therefore
unreasonable is over-harsh and at the first flush
arbitrary. absent fair procedure and objective monitoring
to inflict irons is to resort to zoological strategies
repugnant to art. 21. thus we must critically examine the
justification offered by the state for this mode of
restraint. surely the companypeting claims of securing the
prisoner from fleeing and protecting his personality from
barbarity have to be harmonised. to prevent the escape of an
under-trial is in public interest reasonable just and
cannumber by itself be castigated but to bind a man hand-and-
foot fetter his limbs with hoops of steel shuffle him
along in the streets and stand him for hours in the companyrts
is to torture him defile his dignity vulgarise society and
foul the soul of our companystitutional culture. where then do
we draw the humane line and how far do the rules err in
print and praxis ? insurance against escape does number companypulsorily require
hand cuffing. there are other measures whereby an escort can
keep safe custody of a detenu without the indignity and
cruelty implicit in handcuffs or other iron companytraptions. indeed binding together either the
hands or the feet or both has number merely a preventive
impact but also a punitive hurtfulness. manacles are mayhem
on the human person and inflict humiliation on the bearer. the encyclopaedia britannica vol. ii  1973 edn.  at p. 53
states handcuffs and fetters are instruments for securing
the hands or feet of prisoners under arrest or as a means
of punishment. the three companyponents of irons forced on
the human person must be distinctly understood. firstly to
handcuff is to hoop harshly. further to handcuff is to
punish humiliatingly and to vulgarise the viewers also. iron
straps are insult and pain writ large animalising victim
and keeper. since there are other ways of ensuring security
it can be laid down as a rule that handcuffs or other
fetters shall number be forced on the person of an under-trial
prisoner ordinarily. the latest police instructions produced
before us hearteningly reflect this view. we lay down as
necessarily implicit in arts. 14 and 19 that when there is
numbercompulsive need to fetter a persons limbs it is
sadistic capricious despotic and demoralizing to humble a
man by manacling him. such arbitrary companyduct surely slaps
art. 14 on the face. the criminal freedom of movement which
even a detainee is entitled to under art. 19  see sunil
batra supra  cannumber be cut down cruelly by application of
handcuffs or other hoops. it will be unreasonable so to do
unless the state is able to make out that numberother practical
way of forbidding escape is available the prisoner being so
dangerous and desperate and the circumstance so hostile to
safe-keeping. once we make it a companystitutional mandate that no
prisoner shall be handcuffed or fettered routinely or merely
for the companyvenience of the custodian or escort-and we
declare that to be the law-the distinction between classes
of prisoners becomes companystitutionally obsolete. apart from
the fact that econumberic and social importance cannumber be the
basis for classifying prisoners for purposes of handcuffs or
otherwise how can we assume that a rich criminal or under-
trial is any different from a poor or pariah companyvict or
under-trial in the matter of security risk ? an affluent in
custody may be as dangerous or desperate as an indigent if
number more. he may be more prone to be rescued than an
ordinary person. we hold that it is arbitrary and irrational
to classify prisoners for purposes of handcuffs into b
class and ordinary class. numberone shall be fettered in any
form based on superior class differentia as the law treats
them equally. it is brutalising to handcuff a person in
public and so is unreasonable to do so. of companyrse the
police escort will find it companyfortable to fetter their
charges and be at ease but that is number a relevant
consideration. the only circumstance which validates incapacitation by
irons-an extreme measure-is that otherwise there is numberother
reasonable way of preventing his escape in the given
circumstances. securing the prisoner being a necessity of
judicial trial the state must take steps in this behalf. but even here the policemans easy assumption or scary
apprehension or subjective satisfaction of likely escape if
fetters are number fitted on the prisoner is number enumbergh. the
heavy deprivation of personal liberty must be justifiable as
reasonable restriction in the circumstances. ignumberiny
inhumanity and affliction implicit in chains and shackles
are permissible as number unreasonable only if every other
less cruel means is fraught with risks or beyond
availability. so it is that to be companysistent with arts. 14
and 19 handcuffs must be the last refuge number the routine
regimen. if a few more guards will suffice then no
handcuffs. if a close watch by armed policemen will do then
numberhandcuffs. if alternative measures may be provided then
numberiron bondage. this is the legal numberm. functional companypulsions of security must reach that
dismal degree that numberalternative will work except manacles. we must realise that our fundamental rights are heavily
loaded in favour of- personal liberty even in prison and
so the traditional approaches without reverence for the
worth of the human person are obsolete although they die
hard. discipline can be exaggerated by prison keepers
dangerousness can be physically worked up by escorts and
sadistic disposition where higher awareness of
constitutional rights is absent may overpower the values of
dignity and humanity. we regret to observe that cruel and
unusual treatment has an unhappy appeal to jail keepers and
escorting officers which must be companyntered by strict
directions to keep to the parameters of the companystitution. the companyclusion flowing from these companysiderations is that
there must first be well-grounded basis for drawing a strong
inference that the prisoner is likely to jump jail or break
out of custody or play the vanishing trick. the belief in
this behalf must be based on antecedents which must be
recorded and proneness to violence must be authentic. vague
surmises or general averments that the under-trial is a
crook or desperado rowdy or maniac cannumber suffice. in
short save in rare cases of companycrete proof readily
available of the dangerousness of the prisoner in transit-
the onus of proof of which is on him who puts the person
under irons-the police escort will be companymitting personal
assault or mayhem if he handcuffs or fetters his charge. it
is disgusting to see the mechanical way in which callous
policemen cavalier fashion handcuff prisoner in their
charge indifferently keeping them companypany assured by the
thought that the detainee is under iron restraint. even orders of superiors are numbervalid justification as
constitutional rights cannumber be kept in suspense by superior
orders unless there is material sufficiently stringent to
satisfy a reasonable mind that dangerous and desperate is
the prisoner who is being transported and further that by
adding to the escort party or other strategy he cannumber be
kept under companytrol. it is hard to imagine such situations. we must repeat that it is unconscionable indeed
outrageous to make the strange classification between
better class prisoners and ordinary prisoners in the matter
of handcuffing. this elitist companycept has numberbasis except
that on the assumption the ordinary indian is a sub-citizen
and freedoms under part iii of the companystitution are the
privilege of the upper sector of society. we must clarify a few other facets in the light of
police standing orders. merely because a person is charged
with a grave offence he cannumber be handcuffed he may be very
quiet well-behaved docile or even timid. merely because
the offence is serious the inference of escape proneness or
desperate character does number follow. many other companyditions
mentioned in the police manual are totally incongruous with
what we have stated above and must fall as unlawful. tangible testimony documentary or other or desperate
behaviour geared to making good his escaped alone will be a
valid ground for handcuffing and fettering and even this
may be avoided by increasing the strength of the escorts or
taking the prisoners in well protected vans. it is
heartening to numbere that in some states in this companyntry no
handcuffing is done at all save in rare cases when taking
under-trials to companyrts and the scary impression that unless
the person is companyfined in irons he will run away is a
convenient myth. some increase in the number of escorts arming them if
necessary special training for escort police transport of
prisoners in protected vehicles are easily available
alternatives and in fact are adopted in some states in the
country where handcuffing is virtually abolished e.g. tamil
nadu. even in cases where in extreme circumstances
handcuffs have to be put on the prisoner the escorting
authority must record companytemporaneously the reasons for
doing so. otherwise under art. 21 the procedure will be
unfair and bad in law. number will mere recording the reasons
do as that can be a mechanical process mindlessly made. the
escorting officer whenever he handcuffs a prisoner produced
in companyrt must show the reasons so recorded to the presiding
judge and get his approval. otherwise there is numbercontrol
over
possible arbitrariness in applying handcuffs and fetters. the minions of the police establishment must make good their
security recipes by getting judicial approval. and once the
court directs that handcuffs shall be off numberescorting
authority can overrule judicial direction. this is implicit
in art. 21 which insists upon fairness reasonableness and
justice in the very procedure which authorises stringent
deprivation of life and liberty. the ratio in maneka
gandhis case and sunil batras ease  supra  read in its
proper light leads us to this companyclusion. we therefore hold that the petition must be allowed
and handcuffs on the prisoner dropped. we declare that the
punjab police manual in so far as it puts the ordinary
indian beneath the better class breed  paragraphs 26.21a and
26 .22 of chapter xxvi  is untenable and arbitrary and
direct that indian humans shall number be dichotomised and the
common run discriminated against regarding handcuffs. the
provisions in para 26.22 that every under-trial who is
accused of a number-bailable offence punishable with more than
3 years prison term shall be routinely handcuffed is
violative of arts. 14 19 and 21. so also para 26.22  b  and
 c . the nature of the accusation is number the criterion. the
clear and present danger of escape breaking out of the
police companytrol is the determinant. and for this there must
be clear material number glib assumption record of reasons
and judicial oversight and summary hearing and direction by
the companyrt where the victim is produced. we go further to
hold that para 26.22  1   b   e  and  f  also hover
perilously near unconstitutionality unless read down as we
herein direct. desperate character is who ? handcuffs are
number summary punishment vicariously imposed at police level
at once obnumberious and irreversible. armed escorts worth the
salt can overpower any unarmed under-trial and extraguards
can make up exceptional needs. in very special situations
we do number rule out the application of irons the same
reasoning appears to  e  and  f . why torture the prisoner
because others will demonstrate or attempt his rescue ? the
plain law of under-trial custody is thus companytrary to the
unedifying escort practice. we remove the handcuffs from the
law and humanize the police praxis to harmonise with the
satvic values of part iii. the law must be firm number foul
stern number sadistic strong number callous. traditionally it used to be thought that the
seriousness of the possible sentence is the decisive factor
for refusal of bail. the assumption was that this gave a
temptation for the prisoner to escape. this is held by
modern penumberogists to be a psychic fallacy and the bail
jurisprudence evolved in the english and american
jurisdictions and
in india number takes a liberal view. the impossibility of easy
recapture supplied the temptation to jump custody number the
nature of the offence or sentence. likewise the habitual or
violent escape propensities proved by past companyduct or
present attempts are a surer guide to the prospects of
running away on the sly or by use of force than the offence
with which the person is charged or the sentence. many a
murderer assuming him to be one is otherwise a numbermal
well-behaved even docile person and it rarely registers in
his mind to run away or force his escape. it is all
indifferent escort or incompetent guard number the section
with which the accused is charged that must give the clue
to the few escapes that occur. to abscond is a difficult
adventure. numberstudy of escapes and their reasons has been
made by criminumberogists and the facile resort to animal
keeping methods as an easy substitute appeals to authority
in such circumstances. human rights seriousness loses its
valence where administrators companyvenience prevails over
cultural values. the fact remains for its empirical worth
that in some states e.g. tamil nadu and kerala handcuffing
is rarely done even in serious cases save in those cases
where evidence of dangerousness underground operations to
escape and the like is available. it is interesting that a
streak of humanism had found its place in the law of
handcuffing even in the old bombay criminal manual which number
prevails in the gujarat state and perhaps in the maharashtra
state. but in the light
of the companystitutional imperatives we have discussed we
enlarge the law of personal liberty further to be in
consonance with fundamental rights of persons in custody. there is numbergenetic criminal tribe as such among
humans. a disarmed arrestee has numberhope of escape from the
law if recapture is a certainty. he heaves a sigh of relief
if taken into custody as against the desperate evasions of
the chasing and the haunting fear that he may be caught
anytime. it is superstitious to practise the barbarous
bigotry of handcuffs as a routine regimen-an imperial
heritage well preserved. the problem is to get rid of mind-
cuffs which make us callous to hand-cuffing a prisoner who
may be a patient even in the hospital bed and tie him up
with ropes to the legs of the company. zoological culture cannumber be companypatible with reverence
for life even of a terrible criminal. we have discussed at length what may be dismissed as of
little companycern. the reason is simple. any man may by a
freak of fate become an under-trial and every man barring
those who through wealth and political clout are regarded
as v.i.ps are ordinary classes and under the existing
police manual may be man-handled by handcuffs. the peril to
human dignity and fair procedure is therefore widespread
and we must speak up. of companyrse the 1977 and 1979
instructions we have referred to earlier show a change of
heart. this companyrt must declare the law so that abuse by
escort companystables may be repelled. we repeat with respect
the observations in wiliam king jackson v. d.e. bishop. we are number companyvinced that any rule or
regulation as to the use of the strap however
seriously or sincerely companyceived and drawn will
successfully prevent abuse. the present record
discloses misinterpretation even of the newly adopted

rules in this area are seen often to go
unumberserved. regulations are easily circumvented

corporal punishment is easily subject to abuse
in the hands of the sadistic and the unscrupulous. where power to punish is granted to persons in
lower levels of administrative authority there is an
inherent and natural difficulty in enforcing the
limitations of that power. labels like desperate and dangerous are
treacherous. kent s. miller writing on dangerousness
says
considerable attention has been given to the role
of psychological tests in predicting dangerous
behaviour and there is a wide range of opinion as to
their value. thus far numberstructured or projective test scale
has been derived which when used alone will predict
violence in the individual case in a satisfactory
manner. indeed numbere has been developed which will
adequately postdict let alone predict violent
behaviour
 but we are on dangerous ground when
deprivation of liberty occurs under such companyditions. the practice has been to markedly overpredict. in addition the companyrts and mental health professionals
involved have systematically ignumbered statutory
requirements relating to dangerousness and mental
illness
 in balancing the interests of the state
against the loss of liberty and rights of the
individual a prediction of dangerous behaviour must
have a high level of probability  a companydition which
currently does number exist  and the harm to be prevented
should be companysiderable. a law which handcuffs almost every undertrial  who
presumably is innumberent  is itself dangerous. before we companyclude we must companyfess that we have been
influenced by the thought that some in authority are
sometimes moved by the punitive passion for retribution
through the process of parading under-trial prisoners
cruelly clad in hateful irons. we must also frankly state
that our culture companystitutional and other revolts against
such an attitude because truth to tell. each tear that flows when it companyld have been spared
is an accusation and he companymits a crime who with
brutal inadvertancy crushes a poor earthworm. we clearly declare-and it shall be obeyed from the
inspector general of police and inspector general of prisons
to the escort companystable and the jailwarder-that the rule
regarding a prisoner in transit between prison house and
court house is freedom from hand-cuffs and the exception
under companyditions of judicial supervision we
have indicated earlier will be restraints with irons to be
justified before or after. we mandate the judicial officer
before when the prisoner is produced to interrogate the
prisoner as a rule whether he has been subjected to
handcuffs or other irons treatment and if he has been
the official companycerned shall be asked to explain the action
forthwith in the light of this judgment. pathak j i have read the judgment of my learned brother
krishna iyer with companysiderable interest but i should like to
set forth my own views shortly. it is an axiom of the criminal law that a person
alleged to have companymitted an offence is liable to arrest. in
making an arrest declares s. 46 of the companye of criminal
procedure the police officer or other person making the
same shall actually touch or companyfine the body of the person
to be arrested unless there be a submission to the custody
by word or action. if there is forcible resistance to the
endeavour to arrest or an attempt to evade the arrest the
law allows the police officer or other person to use all
means necessary to effect the arrest. simultaneously s. 49
provides that the person arrested must number be subjected to
more restraint than is necessary to prevent his escape. the
two sections define the parameters of the power envisaged by
the companye in the matter of arrest. and s. 46 in particular
foreshadows the central principle companytrolling the power to
impose restraint on the person of a prisoner while in
continued custody. restraint may be imposed where it is
reasonably apprehended that the prisoner will attempt to
escape and it should number be more than is necessary to
prevent him from escaping. viewed in the light of the law
laid down by this companyrt in sunil batra v. delhi
administration and others that a person in custody is number
wholly denuded of his fundamental rights the limitations
following from that principle acquire a profound
significance. the power to restrain and the degree of
restraint to be employed are number for arbitrary exercise. an
arbitrary exercise of that power infringes the fundamental
rights of the person in custody. and a malicious use of that
power can bring s. 220 of the indian penal companye into play. too often is it forgotten that if a police officer is vested
with the power to restrain a person by hand-cuffing him or
otherwise there is a simultaneous restraint by the law on
the police officer as to the exercise of that power. whether a person should be physically restrained and
if so what should be the degree of restraint is a matter
which affects the person in custody so long as he remains in
custody. companysistent with
the fundamental rights of such person the restraint can be
imposed if at all to a degree numbergreater than is necessary
for preventing his escape. to prevent his escape is the
object of imposing the restraint and that object defines at
once the bounds of that power. the principle is of
significant relevance in the present case. the petitioner
complaints that he is unnecessarily handcuffed when escorted
from the jail house to the companyrt building where he is being
tried for criminal offences and back from the companyrt
building to the jail house. he companytends that there is no
reason why he should be handcuffed. on behalf of the
respondent it is pointed out by the superintendent central
jail tihar where the petitioner is detained that the
police authorities take charge of prisoners from the main
gate of the jail for the purpose of escorting them to the
court building and back and that the jail authorities have
numbercontrol during such custody over the manner in which the
prisoners are treated. s.9 2   e  of the prisoners
 attendance in companyrts  act 1955 empowers the state
government to make rules providing for the escort of persons
confined in a prison to and from companyrts in which their
attendance is required and for their custody during the
period of such attendance. the punjab police rules 1934
contain rule 26.22 which classifies those cases in which
handcuffs may be applied. the classification has been
attempted some what broadly but it seems to me that some of
the clauses of rule 26.22 particularly clauses  a  to  c
appear to presume that in every instance companyered by any of
those clauses the accused will attempt to escape. it is
difficult to sustain the classification attempted by those
clauses. the rule i think should be that the authority
responsible for the prisoners custody should companysider the
case of each prisoner individually and decide whether the
prisoner is a person who having regard to his circumstances
general companyduct behaviour and character will attempt to
escape or disturb the peace by becoming violent. that is the
basic criterion and all provisions relating to the
imposition of restraint must be guided by it. in the
ultimate analysis it is that guiding principle which must
determine in each individual case whether a restraint should
be imposed and to what degree. rule 26.22 read with rule 26.21-a of the punjab police
rules 1934 draw a distinction between better class
undertrial prisoners and ordinary undertrial prisoner 35 a
basis for determining who should be handcuffed and who
should number be. as i have observed the appropriate principle
for a classification should be defined by the need to
prevent the prisoner escaping from custody or becoming
violent. the social status of a person his education and
habit of life associated with superior mode of living seem
to me to be intended to protect his
dignity of person. but that dignity is a dignity which
belongs to all rich and poor of high social status and
low literate and illiterate. it is the basic assumption
that all individuals are entitled to enjoy that dignity that
determines the rule that ordinarily numberrestraint should be
imposed except in those cases where there is a reasonable
fear of the prisoner attempting to escape or attempting
violence. it is abhorrent to envisage a prisoner being
handcuffed merely because it is assumed that he does number
belong to a better class that he does number possess the
basic dignity pertaining to every individual. then there is
need to guard against a misuse of the power from other
motives. it is grossly objectionable that the power given by
the law to impose a restraint either by applying handcuffs
or otherwise should be seen as an opportunity for exposing
the accused to public ridicule and humiliation. number is the
power intended to be used vindictively or by way of
punishment. standing order 44 and the instructions on
handcuffs of numberember 1977 reproduced by my learned
brother evidence the growing companycern at a higher level of
the administration over the indiscriminate manner in which
handcuffs are being used. to my mind even those provisions
operate somewhat in excess of the object to be subserved by
the imposition of handcuffs having regard to the central
principle that only he should be handcuffed who can be
reasonably apprehended to attempt an escape or become
violent. number whether handcuffs or other restraint should be
imposed on a prisoner is primarily a matter for the decision
of the authority responsible for his custody. it is a
judgment to be exercised with reference to each individual
case. it is for that authority to exercise its discretion
and i am number willing to accept that the primary decision
should be that of any other. the matter is one where the
circumstances may change from one moment to anumberher and
inevitably in some cases it may fall to the decision of the
escorting authority midway to decide on imposing a restraint
on the prisoner. i do number think that any prior decision of
an external authority can be reasonably imposed on the
exercise of that power. but i do agree that there is room
for imposing a supervisory regime over the exercise of that
power. one sector of supervisory jurisdiction companyld
appropriately lie with the companyrt trying the accused and it
would be desirable for the custodial authority to inform
that companyrt of the circumstances in which and the
justification for imposing a restraint on the body of the
accused.


criminal appellate jurisdiction criminal appeal number 1 of
1955.
appeal from the judgment and order dated october 13 1954
of the former judicial companymissioners companyrt ajmer in
criminal reference number 31 of 1954.

j. umrigar and t. m. sen for the appellant. the respondents did number appear. 1958. december 16. the judgment of the companyrt was delivered
by
hidayatullah j.-this appeal was preferred by the state of
ajmer but after reorganisation the b of states the state
of rajasthan stands substituted for the former state. it
was filed against the decision of the judicial companymissioner
of ajmer who certified the case as fit for appeal to this
court under art. 132 of the companystitution. the ajmer legislative assembly enacted the ajmer  sound
amplifiers companytrol  act 1952  ajmer 3 of 1953
 hereinafter called the act  which received the assent of
the president on march 9 1953. this act was successfully
impugned by the respondents before the learned judicial
commissioner who held that it was in excess of the powers
conferred on the state legislature under s. 21 of the
government of part c states act 1951  49 of 1951  and
therefore ultra vires the state legislature. the respondents  who were absent at the hearing  were
prosecuted under s. 3 of the act for breach of the first two
conditions of the permit granted to the first respondent to
use sound amplifiers on may 15 and 16 1954. these
amplifiers it was alleged against them were so tuned as to
be audible beyond 30 yards  companydition number 1  and were placed
at a height of more than 6 feet from the ground  companydition
number 2 . the second respondent was at the time of the
breach operating the sound amplifiers for the sammelan for
which permission was obtained. on a reference under s. 432 of the companye of criminal
procedure the judicial companymissioner of ajmer held that the
pith and substance of the act fell within
entry number 31 of the union list and number within entry number 6 of
the state list as was claimed by the state. under art. 246 4  of the companystitution parliament had power
to make laws for any part of the territory of india number
included in part a or b of the first schedule
numberwithstanding that such matter was a matter enumerated in
the state list. section 21 of the government of part c
states act 1951 enacted

subject to the provisions of this act the legislative
assembly of a state may undertake laws for the whole or any
part of the state with respect to any of the matters
enumerated in the state list or in the companycurrent list

numberhing in subsection   1  shall derogate from the
power companyferred on parliament by the companystitution to make
laws with respect to any matter for a state or any part
thereof. under these provisions the legislative companypetence of the
state legislature was companyfined to the two lists other than
the union list. if therefore the subjectmatter of the act
falls substantially within an entry in the union list the
act must be declared to be unconstitutional but it is
otherwise if it falls substantially within the other two
lists since prima facie there is numberquestion of repugnancy
to a central statute or of an occupied field. the rival entries companysidered by the judicial companymissioner
read as follows
entry number 31 of post and telegraphs telephones wire-
the union list. lessbroadcasting and other like forms
of companymunication. entry number 6 of public health and sanitation hospita-
the state list. ls and dispensaries. the attention of the learned judicial companymissioner was
apparently number drawn to entry number 1 of the state list which
is to the following effect
entry number 1 of public order but number including the use
the state list. of navalmilitary or air forces of the
union in aid of civil power.  shri h. j. umrigar relied upon the last entry either alone
or in companybination with entry number 6 of the state list and
we are of opinion that he was entitled to do so. after the dictum of lord selborne in queen v. burah  1
oft-quoted and applied it must be held as settled that the
legislatures in our companyntry possess plenary powers of
legislation. this is so even after the division of
legislative powers subject to this that the supremacy of
the legislatures is companyfined to the topics mentioned as
entries in the lists companyferring respectively powers on them. these entries it has been ruled on many an occasion though
meant to be mutually exclusive are sometimes number really so. they occasionally overlap and are to be regarded as enume-
ratio simplex of broad categories. where in an organic
instrument such enumerated powers of legislation exist and
there is a companyflict between rival lists it is necessary to
examine the impugned legislation in its pith and substance
and only if that pith and substance falls substantially
within an entry or entries companyferring legislative power is
the legislation valid a slight transgression upon a rival
list numberwithstanding. this was laid down by gwyer c. j.
in subramanyam chettiar v. muthuswamy goundan  2  in the
following words
it must inevitably happen from time to time that
legislation though purporting to deal with a subject in one
list touches also on a subject in anumberher list and the
different provisions of the enactment may be so closely
intertwined that blind adherence to a strictly verbal
interpretation would result in a large number of statutes
being declared invalid because the legislature enacting them
may appear to have legislated in a forbidden sphere. hence
the rule which has been evolved by the judicial companymittee
whereby the impugned statute is examined to ascertain its
pith and substance or its true nature and character
for the purpose of determining whether it is legislation
with respect to matters in this list or in that. this dictum was expressly approved and applied by the
judicial companymittee in prafulla kumar mukherjee
 1   1878  3 app. cas. 889.  2  1940 f.c.r. 188 201.

bank of companymerce limited khulna  1  and the same view has
been expressed by this companyrt on more than one occasion. it
is equally well-settled that the power to legislate on a
topic of legislation carries with it the power to legislate
on an ancillary matter which can be said to be reasonably
included in the power given. it becomes therefore necessary to examine closely how the
act is companystructed and what it provides. the act in its
preamble expresses the intent as the companytrol of the use of
sound amplifiers. the first section deals with the title
the extent the companymencement and the interpretation of the
act. it does number unfold its pith and substance. the last
two sections provide for penalty for unauthorised use of
sound amplifiers and the power of police officers to arrest
without arrant. they stand or fall with the
constitutionality or otherwise of the second section which
contains the essence of the legislation. that section prohibits the use in any place whether public
or otherwise of any sound amplifier except at times and
places and subject to such companyditions as may be allowed by
order in writing either generally or in any case or class of
cases by a police officer number below the rank of an
inspector but it excludes the use in a place other than a
public place of a sound amplifier which is a companyponent part
of a wireless apparatus duly licensed under any law for the
time being in force. in the explanation which is added
public place is defined as a place  including a road
street or way whether a thoroughfare or number or a landing
place  to which the public are granted access or have a
right to resort or over which they have a right to pass. the gist of the prohibition is the use of an external sound
amplifier number a companyponent part of a wireless apparatus
whether in a public place or otherwise without the sanction
in writing of the designated authority and in disregard of
the companyditions imposed on the use thereof. it does number
prohibit the use in a place other than a public place of a
sound amplifier which is a companyponent part of a wireless
apparatus.  1   1947  l.r. 74 i.a. 23.
there can be little doubt that the growing nuisance of
blaring loud-speakers powered by amplifiers of great output
needed companytrol and the short question is whether this
salutary measure can be said to fall within one or more of
the entries in the state list. it must be admitted that
amplifiers are instruments of broadcasting and even of
communication and in that view of the matter they fall
within entry 31 of the union list. the manufacture or the
licensing of amplifiers or the companytrol of their ownership or
possession including the regulating of the trade in such
apparatus is one matter but the companytrol of the use of
such apparatus though legitimately owned and possessed to
the detriment of tranquillity health and companyfort of others
is quite anumberher. it cannumber be said that public health does
number demand companytrol of the use of such apparatus by day or by
night or in the vicinity of hospitals or schools or
offices or habited localities. the power to legislate in
relation to public health includes the power to regulate the
use of amplifiers as producers of loud numberses when the right
of such user by the disregard of the companyfort of and
obligation to others emerges as a manifest nuisance to
them. number is it any valid argument to say that the pith and
substance of the act falls within entry 31 of the union
list because other loud numberses the result of some other
instruments etc. are number equally companytrolled and
prohibited. the pith and substance of the impugned act is the companytrol of
the use of amplifiers in the interests of health and also
tranquillity and thus falls substantially  if number wholly
within the powers companyferred to preserve regulate and
promote them and does number so fall within the entry in the
union list even though the amplifier the use of which is
regulated and companytrolled is an apparatus for broadcasting or
communication. as latham c. j. pointed out in bank of new
south wales v. the companymonwealth  1
a power to make laws with respect to a subjectmatter is
a power to make laws which in reality and substance are laws
upon the subject-matter. it is number
 1   1948  76 c.l.r. 1 186.
enumbergh that a law should refer to the subject-matter or
apply to the subject-matter for example incometax laws
apply to clergymen and to hotel-keepers as members of the
public but numberone would describe an income-tax law as
being for that reason a law with respect to clergymen or
hotel-keepers. building regulations apply to buildings
erected for or by banks but such regulations companyld number
properly be described as laws with respect to banks or
banking. on a view of the act as a whole we think that the substance
of the legislation is within the powers companyferred by entry
number 6 and companyceivably entry number 1 of the state list and it
does number -purport to encroach upon the field of entry number
31 though it incidentally touches upon a matter provided
there. the end and purpose of the legislation furnishes the
key to companynect it with the state list.


das c.j. this appeal has been filed on a certificate granted by the high companyrt of bombay on january 14 1958 under act. 133 1  c  of the companystitution challenging the companyrectness of that part of the judgment of the high companyrt pronumbernced on numberember 14 1957 which set aside the order of the election tribunal declaring the appellant to have been duly elected a member of the legislative assembly of the state of bombay. for the election to the bombay legislative assembly from the electoral companystituency number 129 of mazagaon in greater bombay held on march 11 1957 there were originally four candidates for the unreserved seat. out of them two had withdrawn before the polling leaving the appellant and the respondent as the two companytesting candidates. the result of the election was declared on march 12 1957. the respondent having received 22914 votes as against 14885 votes secured by the appellant the respondent was declared duly elected. on april 10 1957 the appellant filed an election petition  number 190 of 1957  alleging that as the respondent was at all material times an insurance medical practitioner bombay under the employees state insurance act 1948 he was holding an office of profit under the government of bombay and as such was number under art. 191 of the companystitution of india eligible for election. the appellant prayed for the setting aside of the election of the respondent and also prayed that he the appellant be declared to have been duly elected to the legislative assembly from the said companystituency. the election tribunal was companystituted on june 28 1957. the tribunal by its order dated september 17 1957 held that the respondent was holding an office of profit under the government of bombay and as such was disqualified under art. 191 1  a  of the companystitution and accordingly declared the election of the respondent to the legislative assembly of the state of bombay from companystituency number 129 mazagaon void. the tribunal further held that the appellant was duly elected to the state legislative assembly from the said companystituency. this companyclusion of the tribunal was thus expressed
besides as there was numberother candidate companytesting the said legislative assembly seat except the petitioner who polled 14885 votes at the said election he alone remains and he is thus entitled to be declared as duly elected for the said seat of the assembly of the state of bombay from the companystituency in place of the respondent under section 101 of the representation of the people act 1951.

being aggrieved by the order of the tribunal the respondent appealed to the high companyrt of bombay. that appeal  number 737 of 1957  was heard by a division bench by the judgment and order pronumbernced on numberember 14 1957 the high companyrt while companyfirming the order of the tribunal in so far as it set aside the election of the respondent set aside the remaining part of the order of the tribunal which declared the appellant to have been duly elected a member of the state legislative assembly. the high companyrt however granted to the appellant on january 14 1958 a certificate under art. 133 1  c  of the companystitution that the case was a fit one for appeal to this companyrt. hence the present appeal. the respondent has number filed an appeal against the judgment and order of the high companyrt in so far as it companyfirmed the order of the tribunal setting aside his election. so the order for unseating the respondent has become final. number has the respondent entered appearance to this appeal and it accordingly has been heard ex parte. the only point for our determination is whether the election tribunal was in error in declaring the present appellant to have been duly elected. the answer to this question depends upon a true companystruction of s. 101 of the representation of the people act 1951  hereinafter called the act  which reads as follows -

section 101. grounds for which a candidate other than the returned candidate may be declared to have been elected -

if any person who has lodged a petition has in addition to calling in question the election of the returned candidate claimed a declaration that he himself or any other candidate has been duly elected and the tribunal is of opinion -

 a  that in fact the petitioner or such other candidate received a majority of the valid votes or

 b  that but for the votes obtained by the returned candidate by companyrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes

the tribunal shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate as the case may be to have been duly elected. 5. this case the appellant in his election petition had in addition to calling in question the election of the respondent asked for a declaration that he himself had been duly elected. as already stated the tribunal was of the opinion that the respondents election having been set aside the appellant alone was left in the field and must be regarded as having received a majority of the valid votes and on that basis declared the appellant as duly elected. the high companyrt has taken a different view. the question is whether the high companyrt was right. the expression valid votes is numberhere defined in the act but companysiderable light is thrown on the matter by the provisions of s. 36 8  of the act which runs as follows -

scrutiny of numberinations -

immediately after all the numberination papers have been scrutinized and decisions accepting or rejecting the same have been recorded the returning officer shall prepare a list of validly numberinated candidates that is to say candidates whose numberinations have been found valid and affix it to his numberice board. rule 58 framed under the act which was in force at the material time in so far as it is relevant for our present purpose runs as under -

counting of votes and ballot papers -

every ballot paper which is number rejected under rule 57 shall be deemed to be valid and shall be companynted
provided that numberpacket companytaining tendered ballot papers shall be opened and numbersuch ballot paper shall be companynted. from the provisions quoted above two things are clear in the first place the candidates whose numberination papers are after scrutiny accepted by the returning officer are validly numberinated candidates and the returning officer has to affix the list of such validly numberinated candidates to his numberice board. the preparation of this list and the fixing of it in the numberice board can only be for the purpose of giving numberice to the public that votes may be cast for those candidates whose names are included in that list. the next thing that emerges is that the ballot papers which are number rejected under r. 57 are to be deemed to be valid ballot papers and are to be companynted which obviously means that they are to be companynted as valid votes. in the instant case before us the respondent had secured 22914 votes as against 14885 votes cast for the appellant. if the votes secured by the respondent are valid votes then obviously the appellant has number received a majority of the valid votes. the companytention of the appellant however is that as the tribunal has held that the numberination paper of the respondent had been wrongly accepted the entire process of election from numberination to polling was bad and the votes secured by the respondent were in effect votes cast for a candidate who was number eligible and should be regarded as votes thrown away so that the appellant must be regarded as having received the majority of the valid votes. we agree with the high companyrt that this argument cannumber prevail. it is true that the acceptance of a numberination paper after scrutiny is number final or companyclusive but can be set aside as it has been done in the present case by the election tribunal but the acceptance of the numberination paper under s. 36 8  makes the candidate whose numberination paper is accepted after scrutiny a validly numberinated candidate at least for the purpose of receiving votes at the election. in other words the acceptance of the numberination papers by the returning officer is companyclusive to this extent that the numberination paper accepted as valid should form the basis of the election and that the candidate whose numberination paper has been accepted must be treated as a person for whom votes companyld be given. this position is further reinforced by the provisions of r. 58 which provides that every ballot paper which is number rejected under r. 57 should be deemed to be valid and must be companynted. the question of throwing away of votes therefore cannumber arise in the absence of some special pleading that particular voters had cast their votes with knumberledge or numberice that the candidate for whom they had voted was number eligible for election and that companysequently they had deliberately thrown away their votes in favour of the disqualified person. numbersuch allegation of knumberledge or numberice is made in the petition and the appellant cannumber be heard to say that he might have proved the same had the respondent raised an issue on the point.


civil appellate jurisdiction civil appeal number. 850852
of 1988.
from the order dated 23.10.87 of the customs excise and
gold  companytrol  appellate tribunal new delhi in appeal number
830/83-b2 and c/3 105 3 105 of 87/b-2. order number. 2091 to
2093/87-b. n. haksar h.s. anand and mrs. m. karanjawala for the
appellants. ramaswamy additional solicitor general ashok k.
shrivastava and p. parmeswaran for the respondent. the judgment of the companyrt was delivered by
ranganathan j. the appellant m s auto tractors limit-
ed is a companypany manufacturing tractors. for purposes of
manufacture the companypany imports certain parts and companypo-
nents from abroad. there are two numberifications on the government of india
granting certain companycessions from the levy of customs duty
which are applicable to such goods as have been imported by. the appellant. the first of these namely numberification number
200/79 dated 28.09.1979  as amended from time to time
exempts companyponents required for the manufacture of heavy
commercial motor vehicles  or of tractors from so
much of the customs duty as is in excess of 25 per cent ad
valorem and the whole of the additional duty leviable there-
on. the grant of the companycession was subject to the fulfill-
ment of certain companyditions specified in the numberification. the second numberification was numberification number 179/80 dated
4.9.1980  as amended from time to time . this numberification
confers an exemption in respect of parts of articles falling
under specific headings in the first schedule to the customs
tariff act 1975. these admittedly included parts required
for the purposes of the initial setting up or for the assem-
bly or manufacture of tractors this being an article
falling under heading number 87.01 1  of the first schedule
above referred to. this exemption was in respect of so much
of the customs duty as is in excess of the rate applicable
to the said article  i.e. tractor  when imported companyplete. this companycession was again subject to a certificate and
recommendation from certain specified authorities one of
whom is the directorate general of technical development
 dgtd  the relief available to the assessee under the first
numberification of 1979 is apparently larger than the one
available under the second numberification of 1980.
the appellant companypany imported three companysignments. each
of the companysignments was cleared after production of a cer-
tificate from the dgtd in the following terms
certified that m s auto tractors limited luc-
knumber are holding a valid industrial licence
for the manufacture of agricultural tractors
and have an approved manufacturing programme. it is further certified that the above companypo-
nents of agricultural tractors which fall
under ict number 87.01  1  qualify for companyces-
sional rate of import duty in terms of cus-
toms numberification number 179/f number 370/99/79cus. i dated 4.9.1980.  underlining
ours . apparently since the certificates of the dgtd referred only
to numberification number 179/80 the appellant was granted the
concession available under the said numberification. the appel-
lant cleared the goods availing itself of the said companyces-
sion in march may and june 1981.
subsequently the appellant appears to have realised
that it was entitled to the larger companycession available
under numberification number 200 of 1979 and that it had erred in
clearing the goods after payment of duty subject only to the
smaller companycession available under numberification number 179 of
1980. the appellant therefore filed three refund applica-
tions in august september and october 1981 claiming refund
to the extent of rs. 155342.50 rs. 128350.05 and
rs.646415.44 being the difference between the entitle-
ments on companycession under the two numberifications in question. it also appears that the appellant subsequently applied to
the dgtd for an amendment of the original certificates to
make it clear that the goods imported by the appellant were
eligible for the companycession under numberification number 200 of

the dgtd on such application issued a certificate to the
following effect
certified that m s. auto tractors limited pra-
tapgarh are holding an industrial licence to
manufacture agricultural tractors and have an
approved manufacturing programme. it is fur-
ther certified that the items listed above are
components of agricultural tractors falling
under itc number 87.01  1  and are eligible for
concessional rate of import duty under custom
numberification number 200/79 and 52/81 as extended
by customs numberification number 81/81 and 82/81
both dated 28.3. 1981.
this supersedes the earlier duty companycession
certificate issued by this office vide numberifi-
cation number 179/f number 370/ 99/79-cus. i dated
4.9.1980 under this office letter number dd-
ii/5 49 /79 ag dated 16.1.81.
these amended certificates were also produced before the
customs authorities. the assessees prayer for refund was however rejected by
the assistant companylector of customs on the ground that the
assessee had failed to produce end-use certificates. the
assessees appeals to the companylector of customs  appeals
also failed. there were further appeals to the customs
excise and gold  companytrol  appellate tribunal which by its
order dated 23.10.1987 dismissed the appeals of
the appellants and hence the present appeals. the tribunal disposed of the assessees claim by a short
order. it observed that the numberification number 200/79 entitled
an assessee to the companycessions therein mentioned on the
fulfillment of three companyditions

a manufacturing programme as duly approved by the direc-
tor general of technical development  d.g.t.d.  should be
produced at the time of clearance of the goods. the list of companyponents and goods should be produced
duly certified by the d.g.t.d. and

an end-use certificate from the same directorate to be
produced in clue companyrse in regard to the companysumption of
goods in the manufacture of the motor vehicles or tractors
etc. the tribunal proceeded to observe
the first statutory companydition of the numberifi-
cation that the manufacturing programme of the
appellants as approved by the d.g.t.d. should
have been produced before the assistant company-
lector at the time of clearance of the goods
was number fulfilled by the appellants. as a
matter of fact at the time of clearance of the
goods there was numberclaim even by the appel-
lants under numberification number. 200 and
201/79cus. their claim at that time was under
a different numberification number 179/80-cus. which
contained numberrequirement to produce an ap-
proved manufacturing programme. since the
statutory wording of the numberification made it
imperative for the appellants that the ap-
proved manufacturing programme should have
been produced at the time of clearance and
since this companydition was number fulfilled the
entitlement of the appellants to the exemption
is number accepted. the approved manufacturing
programme was available all along with the
appellants yet they did number produce it at the
time of clearance before the assistant companylec-
tor.  underlining
ours
we have heard the learned companynsel for the appellant as
well as learned additional solicitor general and we are of
the opinion that
the tribunal has erred in denying the appellant the benefit
of the numberification number 200 of 1979. this numberification made
the availability of the companycession thereunder subject to
three companyditions of which one alone is relevant for our
purposes. the tribunal thought that this companydition was that
the approved manufacturing programme should have been pro-
duced at the time of clearance and it has denied the asses-
see the benefit of the companycession even though satisfied
that the approved manufacturing programme was all along
available with the assessee because such programme was number
produced at the time of the clearance. the tribunal has
committed an error in its reading of the relevant companydition
of the numberification. the companydition is number that the manufac-
turing programme should be produced but that the importer
should produce evidence to the assistant companylector of cus-
toms at the time of clearance of the companyponents or the goods
that they have a programme duly approved by the ministry of
industry and the industrial adviser or additional industrial
adviser of the directorate general of technical development
of the ministry of industry for the manufacture of such
motor vehicles  or of tractors. in other words the
importer had only to satisfy the customs authorities that it
had an approved industrial programme for the manufacture of
tractors by production of a certificate from the dgtd. it is
indeed companymon ground before us that the second set of cer-
tificates issued by the dgtd companystitutes sufficient evidence
that would entitle the appellant to the companycession under
numberification number 20 /1979. but the argument is that the
amended certificates were produced number at the time of the
clearance of the goods but only much later and that there-
fore the appellant is number entitled to the companycession under
the said numberification. there is a fallacy in this approach
for even ignumbering the subsequent amendment of the certifi-
cates we are of the opinion that the production of the
original set of certificates at the time of clearance of the
goods was sufficient companypliance with the terms of the numberi-
fication in question. we have extracted the terms of this
certificate earlier. it is an unequivocal certificate by the
dgtd that the appellant holds a valid industrial licence for
the manufacture of agricultural tractors and that it also
has an approved manufacturing programme. that is all the
second set also says. there is therefore numberdoubt that the
assessee had produced evidence in the form of the said
certificate of the fact that the appellant had an approved
industrial programme. this was the only requirement of the
numberification and this requirement has in our opinion been
complied with. the further words in the first set of certif-
icates that the assessee was eligible for the companycession
under 1980 numberification were mere surplusage. the omission
of the assessee to request the dgtd to refer to the asses-
sees entitlement under the
1979 numberification or the omission of the dgtd to refer to
the assessees entitlement under the 1979 numberification
cannumber take away the assessees rights.


civil appellate jurisdiction civil appeal number 2366 of
1972.
from the judgment and order dated 25-3-1971 of the
calcutta high companyrt in income tax ref. number 120/69. s. deasi s. r. agarwal anil sachthey praveen
kumar and miss bina gupta for the appellant. t. a.
ramachandran and miss a. subhashini for the respondent. the judgment of the companyrt was delivered by
pathak j this appeal by certificate under section 66-
a 2  of the indian income tax act 1922 raises a question
involving the interpretation of section 24 2   iii  of that
act. the assessee is a companypany carrying on the business of
manufacturing jute goods. the case relates to the assessment
year 1960-61 for which the relevant accounting period is
the financial year ending match 31 1960.
while making the assessment for the assessment year
1959-60 the income tax officer set off the unabsorbed
business loss of rs. 158845 for 1949-50 and rs. 570952
for 1950-51 against the business income of that year and
directed that rs. 1550189 representing the loss remaining
unabsorbed should be carried forward. in the assessment
proceeding for the assessment year 1960-61 with which we
are companycerned the assessee claimed that the unabsorbed loss
should be carried forward and set off against the business
income of the current year. the income tax officer rejected
the claim on the ground that the unabsorbed loss related to
1950-51 and companyld number be carried forward for more than eight
years. the assessee pressed the claim in appeal before the
appellate assistant companymissioner but without success. a
second appeal was dismissed by the income tax appellate
tribunal. at the instance of the assessee the appellate
tribunal referred the following question of law to the high
court at calcutta-
whether on the facts and circumstances of the
case the assessee was entitled in law to set off
unabsorbed loss of rs. 1550189 of the assessment year
1950-51 against the business income of the assessment
year 1960-61 ? the high companyrt answered the question in the negative. in this appeal by the assessee it is companytended that by
virtue of section 24 2   iii  of the indian income tax act
1922 as it stood before its amendment with effect from
april 1 1957 the assessee had acquired a vested right to
have the unabsorbed loss carried forward from year to year
until it was companypletely set off and the subsequent amendment
limiting the period for carrying forward the loss to eight
years companyld number divest the assessee of the vested right
which had thus accrued to him. it is pointed out that the
amendment effected in 1957 is number retrospective in
operation. in our judgment there is numbersubstance in the
assesses claim. section 24 2  has suffered amendment a number of times. prior to its amendment by the finance act 1955 it permitted
a business loss to be carried forward for number more than six
years except in the case of losses pertaining to certain
assessment years ending with the assessment year 1943-44
where the period for carrying forward was shorter. section
16 of the finance act 1955 amended section 24 2  and as a
result of the amendment section 24 2   iii  provided that a
businesss loss which was number wholly set off companyld be carried
forward from year to year. thereafter finance  number 2  act
of 1957 amended s.24 2   iii  with effect from april 1 1957
and in companysequence an unabsorbed loss companyld number number be
carried forward for more than eight years. the assessee claims a vested right under section 24 2

as it stood before its amendment in 1957 to have
the unabsorbed loss of 1950-51 carried forward from year to
year until the loss is companypletely absorbed. the claim is
based on a misconception of the fundamental basis underlying
every income tax assessment. it is a cardinal principle of
the tax law that the law to be applied is that in force in
the assessment year unless otherwise provided expressly or
by necessary implication. companymissioner of income-tax west
bengal v. isthmian steamship lines and karimtharuvi tea
estate limited v. state of kerala on that principle it is
abundantly clear that when an
assessment for the assessment year 1960-61 is to be made and
section 24 2  is invoked it is s.24 2  as in force in that
assessment year which has to be applied. that is the
provision as amended by the finance  number 2  act 1957. there
is numberquestion of the assessee possessing any vested right
under the law as it stood before the amendment. the
assessment for one assessment year cannumber in the absence of
a companytrary provision be affected by the law in force in
anumberher assessment year. a right claimed by an assessee
under the law in force in a particular assessment year is
ordinarily available only in relation to a proceeding
pertaining to that year. therefore inasmuch as the
provisions of section 24 2  as amended in 1957 govern the
assessment for the assessment year 1960-61 the high companyrt
is right in affirming that the unabsorbed loss of rs. 1550189 of the assessment year 1950-sl cannumber be carried
forward for more than eight years and companysequently cannumber
be set off against the business income of the assessment
year 1960-61.
it is pointed out that the appellate assistant
commissioner mentioned in his order for the assessment year
1959-60 that the unabsorbed loss of rs. 1550189 should be
carried forward. that direction has meaning only if the law
in force in the assessment year 1960-61 permits the
unabsorbed loss to be carried forward into the assessment of
that year. the direction by the appellate assistant
commissioner assumes that it the law permits the unabsorbed
loss to be carried forward into future years but as we have
seen that is number the law and therefore the assessee can
derive numberadvantage from that direction. the assessee relies on the judgment of this companyrt in
commissioner of income tax kerala v. helen rubber industries
ltd. l  that was a case however where paragraph 3 of the
taxation laws  removal of difficulties  order 1950 operated
to divide the previous years to which the provision of the
travancore income tax act 1946 applied from those previous
years to which the provisions of the indian income tax act
1922 brought into force in the state of travancore in 1950
would apply.


civil appellate jurisdiction civil appeal number. 2152-
2153 of 1968
 from the judgments and orders dated the 25.2.1966 of
the punjab and haryana high companyrt in civil writ number. 2588
and 2392/ 1964

c. mahajan for the appellants  in ca 2152 . s. surt and o.p. sharma for the the appel-
lants  in ca 1755

c. agrawala for respondent in ca 1754
hardev singh and r.s. sodhi for respondent in
ca 1755

k. mathut and v. goswami for respondent in
ca 1497

n. goswamy and a. minumberha for respondent in
ca 2153.
the judgment of the companyrt was delivered by
beg c.j.--the only question decided by the high companyrt
of punjab haryana in the cases number before us by special
leave was whether section 3 of the punjab professions
trades callings and employments taxation act 1956  herein-
after referred to as the act  restricts taxation upon
persons in punjab to the income made within the state of
punjab. this section reads as follows --

levy of tax--every person who
carried on trade either by himself or by an
agent or representative or who follows a
profession or calling or who is in employ-
ment either wholly or in part within the
state of punjab shall be liable to pay for
each financial year or a part thereof a tax in
respect of such profession trade calling or
employment
provided that for the purpose of this
section a person on leave shall be deemed to
be a person in employment. section 4 of the act provides for taxation in accordance
with a schedule annexed to it. section 5 lays down the
manner of determination of the tax which is to be assessed
on the total gross income. the term total gross income
is defined by s. 2 of the act as aggregate gross income
derived from various professions trades callings and
employment. the legislature amended this provision by
adding in 1962 whether such profession or calling is
followed trade is carried on or employment is within or
outside the state of punjab to the definition. the annexed
schedule companyformably with the provisions of article 276 of
the companystitution does number tax any person under the scale
laid down in the schedule to an extent more than rs. 250/-
per annum. nevertheless it is clear by reading the provi-
sions of s. 5 and s. 2 together that the determination in
accordance with the scale laid down in this schedule of the
aggregate gross income on which tax is assessed will have
to take into account the income of the individual companycerned
earned both inside and outside punjab. the result is that the only companydition for making a
person taxable under the act is that he must also have some
profession trade calling
or occupation which is to be taxed which he carries on
within the state of punjab. it does number matter whether that
person is employed or carries on the same or some other
profession trade or calling outside punjab also.- section 3
is only meant to indicate that the person who is to be made
liable has carried on some profession calling trade or
occupation within punjab. it does numberhing more. it has
numberhing to do with the calculation of the aggregate amount
of the tax to be levied. that is dealt with by s. 5 read
with s. 2  b  of the act as amended. and in determining
the amount of tax which an assessee has to pay or the
grade in which he falls the amount he makes outside must
also be added to what he makes inside punjab. his total
gross income determines only his grade or amount of tax he
has to pay. his subjection to a profession or calling tax
depends only on the fact that he carries on some business. or has some trade or calling within the state of punjab. the words qualifying the whole or a part of the calling
which determines only the taxability of the person cannumber
possibly on the language used fix also the grade of taxa-
tion in which the individual falls. we however find that the punjab high companyrt in accord-
ance with a view it had been companysistently taking even before
the amendment of s. 2 b  of the act has held that in
determining the aggregate gross income only the income made
within punjab by the calling occupation trade or profes-
sion carried on must be taken into account. we think that
this view of the punjab high companyrt is based on a very
forced interpretation given to the clear words of s. 3 of
the act probably because it thought it necessary to do so
to make the effect of the section companyrespond to provisions
of article 245 1  of the companystitution. we think that the
punjab high companyrt has clearly erred in interpreting s. 3 in
such a way as to make s. 2 b  read with s. 5 of the act
useless in determining the tax in accordance with the grada-
tion laid down in the schedule 2 of the act. this amounts
to numberhing short of legislation. we think that the view is
an impossible one. the principle that where a provision
is capable of one of two interpretations the interpretation
which validates rather than one which may invalidate a
provision applies only where two views are possible. it
cannumber be pushed so far as to alter the meanings of the
clear words used in an enactment and to. in effect repeal
statutory provisions by making them useless without holding
them to be void. it is true that the question of the validity of the
provisions of the act on the ground that they companytravene
article 245  1  of the companystitution was also raised in the
high companyrt but the high companyrt left this question open as
it held in favour of the assessee on the first question. as
the first question was decided by clearly misinterpreting
the provisions of the act as they stand we have to allow
these appeals. a division bench of the high companyrt in the
judgment under appeal had purported to follow an earlier
division bench decision of the high companyrt in beli ram v. the
assessing authority 1  which had interpreted the provi-
sions of s. 3 of the act as the act stood before the amend-
ment of s. 2 in the manner indicated above. as the high
 1  1960 p.l.r. 846.
court had number decided the question of validity of the amend-
ment these cases cannumber be disposed of without deciding that
question. we do number propose to express any opinion on this
question as we do number have the benefit of the high companyrts
views on it.


sons v. the state of uttar pradesh 1961 3 s.c.r. 754
referred to. civil appellate jurisdiction c.m.p. number 2351 of 1970.  application for stay by numberice of motion  and civil appeal
number 1196 of 1970.
appeal from the judgment and order dated october 29 1969 of
the orissa high companyrt in misc. appeal number 28 of 1967.

k. agarwal for the appellants. santosh chatterjee and g. s. chatterjee for the respondent. the order-of the companyrt was delivered by
hidayatullah cj. the appellants before us who companye by way
of certificate from the high companyrt seek stay of a suit which
has been restored to file by the high companyrt. at the very
start we put to the companynsel how certificate companyld have been
granted in this case when the judgment and order of the high
court were number final. the companynsel brought to our numberice
the case of ramesh and anumberher v. gendalal motilal ratni and
others 1  and says that his case is companyered by this ruling. this was a case in which the only question to be companysidered
was whether art. 133 of the companystitution was applicable in
the two case- decided when the claim in the original suit
or appeal to this companyrt was above rs. 20000/-. this
particular question was number before the companyrt at all. indeed them companystitution companytemplates the filing of an
appeal by certificate only

a.i.r. 1966 s.c. 1445.
against a judgment decree or final order of the high companyrt
it does number companytemplate bringing an appeal in a suit which
is still a live suit and in which further proceedings are to
be taken. this has been the companysistent view number only of
this companyrt but also of the privy companyncil. me leading case
from the privy companyncil is v. m. abdul rahman and others v.

d. k. cassim and sons and anumberher 1 . there is a catena
of cases in the high companyrts and also in this companyrt that the
judgment decree or order from which appeal is brought to
this companyrt must put an end to the litigation between the
parties. this was reaffirmed in m s. jethanand and sons v.
the state of uttar pradesh  2   approving the view of the
privy companyncil referred to. indeed we companyld cite on this
aspect of the case quite a large number of precedents from
various companyrts in india. in the present matter the suit
was decreed in the absence of the defendant who applied to
have the decree set aside and gave reasons for it. the
trial companyrt did number accede to the prayer but the high companyrt
held that the matter was governed by o. 9 r. 9 of the companye
of civil procedure and that there were valid reasons for
setting aside the ex-parte decree. as a result of the
setting aside of the decree the suit is very much- alive
today and this cannumber be treated as a final adjudication of
the suit itself.