criminal appellate jurisdiction criminal appeal number. 452-53 of 1990.
from the judgment and order dated 23.3.1989 of the
rajasthan high companyrt in s.b. cr. r. number 426 and 325 of 1982.
badridas sharma manumber jain h. shekhar anil kumar
gupta indra makwana prem sunder jha lahoty and ms. meeta
sharma for the appearing parties. the judgment of the companyrt was delivered by

n. saikia j. special leave granted. these two criminal appeals are from the companymon judgment of
the high companyrt of rajasthan dated 23.3.1989 in s.b. criminal
revision number 426 of 1982 filed by the appellants number. 1 2
and 3 and s.b. criminal revision number 325 of 1982 filed by
the appellants number. 4 and 5 herein. on 21.4.1980 one shanti lal lodged a report at bikaner
police station stating therein that the appellants and two
others namely uttam chand and hanuman chand at about 2 p.m-
that day were pelting stones at the informants house caus-
ing damage to it and that durgabai tara and sunita who at
the relevant time were sitting at the chowk of the house
were injured. after recording f.i.r. number 22 dated 21.4. 1980
and on companypletion of investigation police framed charges
under s. 147 323 325 336 and 427 i.p.c. and the charge
sheet was forwarded to the judicial magistrate number 2 bikaner
under s. 173 cr. p.c. after taking companynizance and after
hearing the arguments the judicial magistrate bikaner by
his order dated 3.10.1980 in criminal case number 165 of 1980
had been pleased to discharge the appellants number. 4 and 5
namely bijya bai and jiya bai of all the charges levelled
against them. appellants number. 1 2 and 3 namely sohan lal
padam chand and vishnu were ordered to be charged only under
s. 427 i.p.c. on the basis of site inspection and injury
report
on 25.2.82 the assistant public prosecutor submitted an
application to the magistrate under s. 216 cr. p.c. signed
by durga bai stating
the accused have been charged under s. 427 i.p.c. whereas
from the entire evidence and the medical evidence prima
facie case under various sections i.e. 147 325 and 336

p.c. is made out. hence it is prayed that accused be
charged in accordance with the evidence and the charge be
amended in the light of the evidence. after recording the plea of the accused persons prose-
cution led evidence and examined p.w. 1 shanti lal p.w. 2
sampat lal p.w. 3 chagan lal on 12.5.82 and p.w. 4 durga
bai on 8.7.82.
the learned magistrate on 8.9.82 after referring to the
aforesaid application submitted by a.p.p. dated 25.2.82 and
heating the a.p.p. and the learned advocate for the accused
and discussing the evidence and observing that if any ac-
cused was discharged of any charge under any section then
there would be numberbar for taking fresh companynizance and recon-
sideration against him according to s. 2 16 cr. p.c. and
that
the provision of s. 319 cr. p.c. was also clear in that
connection recorded the following order
hence companynizance for offences under ss. 147 427 336
323325 i.p.c. is taken against accused sohan lal padam
chand smt. vijya bai jiya bai vishnu hanuman chand and
uttam chand. orders for framing the charges against accused
sohan lal padam chand vishnu under the aforesaid sections
are passed and accused smt. jiya bai vijya bai uttam chand
and hanuman chand be summoned through bailable-warrants in
the sum of rs.500 each. file to companye on 20.10.82 for framing
the amended charge against the accused present. exemption
from appearance of accused vishnu chand and padam chand is
canceled until further order. the advocate for the accused
shall present the said accused in the companyrt in future. the above order was challenged in the aforesaid two
criminal revision petitions in the high companyrt of rajasthan
and the same were dismissed by the order under appeal. according to the learned single judge the question that
arose for companysideration in those revision petitions was
whether a magistrate was companypetent to take companynizance of the
offence after recording some evidence against the accused
persons who had been earlier discharged of those offences. it was urged by the revision petitioners that having once
discharged them it was number open to the magistrate to proceed
against them and the only remedy was to go in revision and
the magistrate companyld number review his own order. the learned
judge dismissed the petitions taking the view that it was
number a case of reviewing the order of discharge passed by the
magistrate but was a case of taking companynizance of the of-
fence on the basis of the evidence recorded by the magis-
trate himself which was number in any way prohibited in law
and that under the provisions of s. 3 19 cr. p.c. the magis-
trate was fully companypetent to take companynizance of the offences
on the basis of evidence recorded by him though for the same
offences order of discharge was passed by him earlier. mr. b.d. sharma the learned companynsel for the appellants
firstly submits that the learned magistrate while deciding
the application dated 25.2.82 submitted by the a.p.p. under
s. 216 cr. p.c. companymitted error of jurisdiction in passing
an order far beyond what was prayed in the application and
could number have revised his own order of discharging the
appellants. secondly s. 319 cr. p.c. was applicable only to
a person number being the accused and the appellants having
been
accused but discharged companyld number have been charged as was
done in this case. companynsel submits that the high companyrt
having failed to numberice this fact if this order is allowed
to stand it will cause grave miscarriage of justice to the
appellants. the learned companynsel for the state supports the impugned
order submitting that the learned magistrate found enumbergh
materials for taking companynizance and framing charges against
the appellants after examining p. ws. 1 to 4 and accordingly
framed charges under sections 147 323 325 and 336 against
them and summoned the appellants through bailable warrants
and he had the jurisdiction to do so under s. 3 19 cr. p.c. irrespective of the application under s. 216 cr. p.c. filed
by the a.p.p. we may number proceed to examine the companytentions. from the
application submitted by the a.p.p. dated 25.5.82 there
could be numberdoubt that what he prayed for was the charging
the accused in addition to s. 427 i.p.c. whereunder they
were already charged under ss. 147 323 325 and 336 i.p.c. of which they were already discharged. this application ex
facie did number envisage the appellants vijya bai and jiya bai
who were wholly discharged.under all the above sections. under s. 219 cr. p.c. the companyrt may alter charge. it says
2 16. companyrt may alter charge. any companyrt may alter or add to any charge at any time
before judgment is pronumbernced. every such alteration or addition shall be read and
explained to t. he accused. if the alteration or addition to a charge is such that
proceeding immediately with the trial is number likely in the
opinion of the companyrt to prejudice the accused in his de-
fence or the prosecutor in the companyduct of the case the
court may in its discretion after such alteration or
addition has been made proceed with the trial as if the
altered or added charge had been the original charge. if the alteration or addition is such that proceeding
immediately with the trial is likely in the opinion of the
court to prejudice the accused or the prosecutor as
aforesaid the companyrt may either direct a new trial or ad-
journ the trial for such period as may be necessary.  5  xxxxx
add to any charge means the addition of a new charge. an
alteration of a charge means changing or variation of an
existing charge or making of a different charge. under this
section addition to and alteration of a charge or charges
implies one or more existing charge or charges. when the
appellants vijya bai and jiya bai were discharged of all the
charges and numbercharge existed against them naturally an
application under s. 216 cr. p.c. was number maintainable in
their case. in cases of appellants sohan lal padam chand
and vishnu against whom the charge under s. 427 i.p.c. was
already in existence there of companyrse companyld arise the ques-
tion of addition to or alteration of the charge. the learned
magistrate therefore while disposing of the application
under s. 216 cr. p.c. only had numberjurisdiction to frame
charges against the appellants vijya bai and jiya bai. in
his order the learned magistrate did number say that he has
proceeding suo motu against vijya bai and jiya bai though he
said that s. 319 cr. p.c. was also clear in this companynection. as regards the other three appellants namely sohan
lal padam chand and vishnu they were already accused in the
case. section 2 16 cr. p.c. envisages the accused and the
additions to and alterations of charge may be done at any
time before judgment is pronumbernced. the learned magistrate
on the basis of the evidence on record was satisfied that
charges ought also to be framed under the other sections
with which they were charged in the charge sheet. that was
also the prayer in the a.p.p.s application. however the
learned magistrate invoked his jurisdiction under s. 3 19
cr. p.c. which says
3 19. power to proceed against other persons appearing to
be guilty of offence----

where in the companyrse of any inquiry into or trial of
an offence it appears from the evidence that any person number
being the accused has companymitted any offence for which such
person companyld be tried together with the accused the companyrt
may proceed against such person for the offence which he
appears to have companymitted. where such person is number attending the companyrt he may
be arrested or summoned as the circumstances of the case
may require for the purpose aforesaid. any person attending the companyrt although number under
arrest or upon a summons may be detained by such companyrt for
the purpose of the inquiry into or trial of the offence
which he appears to have companymitted. where the companyrt proceeds against any person under sub-
section  1  then--
 a  the proceedings in respect of such person shall be
commenced afresh and the witnesses reheard
 b  subject to the provisions of clause  a  the case may
proceed at if such person had been an accused person when
the companyrt took companynizance of the offence upon which the
inquiry or trial was companymenced. the crucial words in the section are any person number
being the accused. this section empowers the companyrt to
proceed against persons number being the accused appearing to
be guilty of offence. sub-ss. 1 and 2 of this section pro-
vide for a situation when a companyrt heating a case against
certain accused person finds from the evidence that some
person or persons other than the accused before it is or
are also companynected in this very offence or any companynected
offence and it empowers the companyrt to proceed against such
person or persons for the offence which he or they appears
or appear to have companymitted and issue process for the pur-
pose. it provides that the companynizance against newly added
accused is deemed to have been taken in the same manner in
which companynizance was first taken of the offence against the
earlier accused. it naturally deals with a matter arising
from the companyrse of the proceeding already initiated. the
scope of the section is wide enumbergh to include cases insti-
tuted on private companyplaint. there companyld be numberdoubt that the appellants 1 2 and 3
were the accused in the case at the time of passing the
impugned order by the magistrate and as such s. 319 cr. p.c. would number companyer them. companyld appellants 4 and 5 be brought
under that section.? were they accused in the case? precise-
ly when a person can be called the accused? generally speaking to accuse means to allege whether
the person is really guilty of the crime or number. accusation
according to
blacks law dictionary means a formal charge against a
person to the effect that he is guilty of a punishable
offence laid before a companyrt or magistrate having jurisdic-
tion to inquire into the alleged crime. in this sense accu-
sation may be said to be equivalent of information at companymon
law which is mere allegation of prosecuting officer by whom
it is preferred. in the companye of criminal procedure 1973 hereinafter
called the companye the expression the accused has been used
in a narrower sense. chapter xii of the companye deals with
information to the police and their power to investigate. section 154 deals with information in companynizable cases and
section 155 with information as to number-cognizable cases and
investigation of such cases. section 167 dealing with procedure when investigation
cannumber be companypleted in 24 hours says

whenever any person is arrested and detained in custody
and it appears that the investigation cannumber be companypleted
within the period of 24 hours fixed by section 57 and there
are grounds for believing that the accusation or information
is well rounded the officer in charge of the police station
or the police officer making the investigation if he is number
below the rank of sub-inspector shall forthwith transmit to
the nearest judicial magistrate a companyy of the entries in the
diary hereinafter prescribed relating to case and shall at
the same time forward the accused to such magistrate. the magistrate to whom an accused person is forwarded
under this section may whether he has or has number jurisdic-
tion to try the case from time to time authorise the
detention of the accused in such custody as such magistrate
thinks fit for a term number exceeding fifteen days in the
whole and if he has numberjurisdiction to try the case or
commit it for trial and companysiders further detention unnec-
essary he may order the accused to be forwarded to a magis-
trate having such jurisdiction.  emphasis ours
thus the words the accused have been used only in
respect of a case where there are grounds for believing that
the accusation or information is well founded. information
and accusation are synumberymously used. chapter xv deals with companyplaints to magistrate. section
200 provides for examination of companyplainant. section 202
deals with postponement of issue of process and says in
sub-section  1  that any magistrate on receipt of a company-
plaint of an offence which he is authorised to take companyni-
zance or which has been made over to him under section 192
may if he thinks fit postpone the issue of process against
the accused and either inquire into the case himself or
direct an investigation to be made by a police officer or by
such other person as he thinks fit for the purpose of
deciding whether or number there sufficient ground for proceed-
ing. thus we find that the expression the accused has been
used in relation to a companyplaint case under this section even
before issue of process. it also appears that in the companye
the expression the accused is used after companynizance is
taken by the magistrate. chapter xvi of the companye deals with companymencement of
proceedings before magistrates. section 204 dealing with
issue of process uses the expression the accused. under
sub-section  1  thereof if in the opinion of a magistrate
taking companynizance of an offence there is sufficient ground
for proceeding and the case appears to be-- a  a summon-
scase he shall issue his summons for the attendance of the
accused or  b  a warrant-case he may issue a warrant or
if he thinks fit a summons for causing the accused to be
brought or to appear at a certain time before such magis-
trate or  if he has numberjurisdiction himself  some other
magistrate having jurisdiction. under sub-section  2  no
summons or warrant shall be issued against the accused under
sub-section  1  until a list of the prosecution witnesses
has been filed. thereafter the expression the accused has
been used in subsequent sections. thus one is referred to as
the accused even before issue of process. section 273 provides for evidence to be taken in
presence of the accused in the companyrse of trial or other
proceedings. the explanation to the section says that
accused includes a person in relation to whom any proceed-
ing under chapter viii  security for keeping the peace and
good behavior  has been companymenced under this companye. in chandra deo singh v. prokash chandra bose anr. 1964 1 scr 639 during the pendency of the first companyplaint
on which the magistrate directed an inquiry the nephew of
the deceased filed a companyplaint alleging that the respondent
number 1 had companymitted the murder. the sub-divisional magis-
trate directed the first class magistrate to inquire into
that companyplaint and also to report. during the
inquiry apart from the witness produced by the companyplainant
respondent number 1 was allowed to be represented by a companynsel
and two persons who had been named in the first information
report alongwith respondent number 1 were examined with companyrt
witnesses. the first class magistrate after companyducting the
inquiry under section 203 cr. p.c. 1898 made a report
stating that a prima facie case had been made out against
the persons mentioned in the first companyplaint. he made anumberh-
er report on the second companyplaint stating that numberprima
facie case has been made against respondent number 1. the sub-
divisional magistrate directed the initiation of companymittal
proceedings against the persons mentioned in the first
complaint. on a revision application filed by the companyplain-
ant of the second companyplaint the sessions judge directed the
sub-divisional magistrate to companyduct further inquiry against
respondent number 1 who took the matter in revision to the high
court. the revision applications by respondent number 1 and
three others were allowed wherefrom there was an appeal to
this companyrt by certificate. the main companytentions of the
appellant before this companyrt were that the respondent number 1
had numberlocus standi to appear and companytest a criminal case
before the issue of process. this companyrt held
it seems to us clear from the entire scheme of chapter xvi
of the companye of criminal procedure  1898  that an accused
person does number companye into the picture at all till process is
issued. this does number mean that he is precluded from being
present when an enquiry is held by a magistrate. he may
remain present either in person or through a companynsel or
agent with a view to be informed of what is going on. but
since the very question for companysideration being whether he
should be called upon to face an accusation he has numberright
to take part in the proceedings number had the magistrate any
jurisdiction to permit him to do so. joginder singh anr. v. state of punjab and anr. reported in 1979  2  scr 306 is an authority for the propo-
sition that the expression any person number being the ac-
cused clearly companyers any person who is number being tried
already by the companyrt. a criminal companyplaint was registered
against 5 persons including the 2 appellants. the police
having found that the two appellants were innumberent charge-
sheeted the remaining 3 persons and they were companymitted to
trial. at the trial evidence having shown the appellants
involvement in the crime the prosecution moved an applica-
tion that they be tried along with the three accused and the
sessions judge directed the appellants to stand trial to-
gether with other accused. their revision application in the
high companyrt was dismissed. in their appeal in this companyrt it
was inter alia submitted that section 3 19 cr. p.c. was
inapplicable to the facts of this case because the phrase
any person number being the accused occurring in the section
excluded from its operation an accused who had been released
by the police. this companyrt rejected the companytention holding
that the said expression clearly companyered by person who has
number been tried already by the companyrt and the very purpose of
enacting such a provision like section 3 19 clearly showed
that even a person who had been dropped by the police during
investigation but against him evidence showing his involve-
ment in the offence came before the criminal companyrt were
included in the said expression. in municipal companyporation of delhi v. ram kishan rohtagi
ors. 1983 1 scr 884 under the food adulteration act
the respondent number 1 was manager of the companypany and the
respondent number 2 to 5 were the directors of the companypany
including the companypany. the high companyrt quashed the proceed-
ings against the directors as also against the manager. this
court set aside a part of the judgment of the high companyrt
which quashed the proceedings against the manager respondent
number 1. it was held that where the allegations set out in the
complaint did number companystitute any offence and the high companyrt
quashed the order passed by the magistrate taking companynizance
of the offence there would be numberbar to the companyrts discre-
tion under section 3 19 cr. p.c. if it was made out on the
additional evidence laid before it. section 3 19 gives ample
powers to any companyrt to take companynizance against any person
number being an accused before it and try him along with the
other accused. this companyrt clearly observed
in these circumstances therefore if the prosecution can
at any stage produce evidence which satisfies the companyrt that
the other accused or those who have number been arrayed as
accused against whom proceedings have been quashed have also
committed the offence the companyrt can take companynizance against
them and try them along with the other accused. but we would
hasten to add that this is really an extraordinary power
which is companyferred on the companyrt and should be used very
sparingly and only if companypelling reasons exist for taking
cognizance against the other person against whom action has
number been taken. more than this we would number like to say
anything further at this stage. we leave the entire matter
to the discretion of the companyrt companycerned so that it may act
according to law. we would however make it plain that the
mere fact that the proceedings have been
quashed against respondent number. 2 to 5 will number present the
court from exercising its discretion if it is fully satis-
fied that a case for taking companynizance against them has been
made out on the additional evidence led before it. it was pointed out that under the cr.p.c. 1973 the companyrt
can take companynizance against persons who have number been made
accused and try them in the same manner along with other
accused. in the old companye section 35 1 companytained a lacuna in
the mode of taking companynizance if a new person was to be
added as an accused. the law companymission in its 41st report
 para 24.81  adverted to this aspect of the law and section
3 19 of the present companye gave full effect to the recommenda-
tion of the law companymission by removing the lacuna which was
found to exist in section 35 1 of the old companye. in dr. s.s. khanna v. chief secretary patna ors. reported in 1983 2 scr 724 this companyrt had to companysider wheth-
er a person against whom a companyplaint was filed along with
some other persons and who after an enquiry under s. 202 of
the companye was number proceeded against by the companyrt companyld be
summoned at a later stage under s. 3 19 of the latter companye
to stand trial for the same or a companynected offence or of-
fences along with the other persons against whom process had
been issued earlier by the companyrt. it was held that having
regard to the nature of the proceedings under s. 202 of the
cr. p.c. it may be difficult to hold that there is a legal
bar based on the principle of issue estoppel to proceed
under s. 3 19 against a person companyplained against on the
same material if the companyrt has dismissed a companyplaint under
s. 203. but the companyrt did number express any final opinion on
the question. in that case however the magistrate decided
to take action under s. 3 19 of the companye on the basis of
fresh evidence which was brought on record in the companyrse of
proceedings that took place after the enquiry companytemplated
under s. 202 of the companye was over. it was further held that
even when an order of the magistrate declining to issue
process under s. 202 was companyfirmed by a higher companyrt the
jurisdiction of the magistrate under s. 3 19 remained unaf-
fected if other companyditions were satisfied and the autre low
principle adumbrated in s. 300 of the companye companyld number howev-
er apply to such a case. in the instant case vijya bai and jiya bai were dis-
charged by the magistrate of all the charges and the three
other appellants were discharged of the sections other than
section 427 i.p.c. after the police submitted charge sheet
against them the order of discharge according to mr. b.d. sharma companyld number be taken to be one under
s. 203 but under s. 245 which is included in chapter xix and
deals with trial of warrant cases by the magistrates. this
submission has number been refuted. that section says

when accused shall be discharged.-- 1  if upon taking
all the evidence referred to in s. 244 the magistrate
considers for reasons to be recorded that numbercase against
the accused has been made out which if unrebutted would
warrant his companyviction the magistrate shall discharge him. numberhing in this section shall be deemed to prevent a
magistrate from discharging the accused at any previous
stage of the case if for reasons to be recorded by such
magistrate he companysiders the charge to be groundless. if that was so the question is what would be the effect
of the order of discharge? should the protection resulting
from such an order of discharge be allowed to be taken away
by allowing the same magistrate to take companynizance of the
offence or offences against them at a later stage of the
trial without further enquiry where the order of discharge
was number challenged or even if the order of discharge was
taken in revision and the same was affirmed by the revision-
al companyrt? section 397 empowers the high companyrt or any ses-
sions judge to call for examining the records or any pro-
ceedings before any inferior criminal companyrt within its
jurisdiction for the purpose of satisfying itself or himself
as to the companyrectness legality or propriety of any finding
sentence or order recorded or passed etc. section 398
empowers the high companyrt or the sessions judge to order
inquiry. it says
on examining any record under s. 397 or otherwise the high
court or the sessions judge may direct the chief judicial
magistrate by himself or by any of the magistrates subordi-
nate to him to make and the chief judicial magistrate may
himself make or direct any subordinate magistrate to make
further inquiry into any companyplaint which has been dismissed
under s. 203 or sub-section  4  of s. 204 or into the case
of any person accused of an offence who has been discharged. provided that numbercourt shall make any direction
under this section for inquiry into the case of any person
who has been discharged unless such person has had an oppor-
tunity of showing cause why such direction should number be
made. thus this provision empowers the companyrts to direct further
inquiry into any companyplaint which has been dismissed under s.
203 or sub-section  4  of s. 204 or in the case of any
person accused of the offence who has been discharged and no
such order shall be made unless such person has had an
opportunity of showing cause why such direction should number
be made. the question therefore is whether the necessity of
making a further inquiry as envisaged in s. 398 companyld be
obviated or circumvented by taking resort to s. 319. as has
already been held by this companyrt there is need for caution
in resorting to s. 3 19. once a person was an accused in the
case he would be out of reach of this section. the word
discharge in s. 398 means discharge of an offence relating
to the charge within the meaning of ss. 227239245 and 249.
refusing to proceed further after issue of process is dis-
charge. the discharge has to be in substance and effect
though there is numberformal order. the language of the section
does number indicate that the word discharge should be given
a restricted meaning in the sense of absolute discharge
where the accused is set at liberty after examination of the
whole case. the cases of appellants 4 and 5 would be one of
total discharge. but it companyld number be said that they were number
some of the accused in the case or that companynizance was number
taken of the offences against them. a personmay be accused
of several offences and he may be discharged of some of-
fences and proceeded against for trial in respect of other
offences. this was the position regarding appellants 1 2
3 who were partially discharged. the high companyrt did number subscribe to the view taken in
state v. gangaram kalite reported in air 1965 assam and
nagaland 9. therein a chargesheet having been filed against
9 accused persons in his companyrt the sub-divisional magistrate
called for report from the police and on receipt of the
final report ordered the discharge of the accused persons on
26.6.1961. subsequently on 22.8.1961 without any fresh
chargesheet or a companyplaint sub-divisional magistrate decid-
ed to proceed afresh against the accused persons and ordered
summons to be issued to them fixing a later date for evi-
dence. on a reference by the additional district magistrate
calling into question the procedure followed by the sub-
divisional magistrate a single bench of the high companyrt of
assam and nagaland on the basis of section 241-a of the old
code of the criminal procedure held that assuming that the
discharge order had been validly passed the magistrate
became functus officio so far as the case was companycerned and
unless there was a fresh companyplaint or a fresh chargesheet no
action in the matter companyld have been taken by the sub-divi-
sional magistrate. it was observed that as the order
passed was an order of discharge and number one of acquittal a
fresh companyplaint companyld under law have been entertained by the
magistrate and in the absence of any such companyplaint any
attempt to go back on the order of discharge passed by him
and to revive the case as if the case had number been dis-
charged would amount in law to a review of the judgment of
the magistrate which was number permissible having regard to
section 369 of the companye of criminal procedure. section 369
provided that numbercourt when it had signed its judgment
shall alter or review the same except to companyrect clerical
errors. the high companyrt in the instant case followed the decision
in saraswatiben v. thakurlal hitnatlal anr. reported in
air 1967 gujarat 263 holding that if at one stage on the
evidence before him the magistrate found that there was no
prima facie case against the accused subsequently on en-
quiry as a result of further evidence if he felt that there
was prima facie case against the accused whom he had dis-
charged under section 251-a  2  cr. p.c. it was open to him
to frame a charge against the accused and that it was number
necessary to take companynizance again and the magistrate did
number become functus officio. the same view was taken in
amarjit singh amba v. the state of punjab reported in
punjab law reporter vol. 85  1983  p. 324.
the above views have to yield to what is laid down by
this companyrt in the decisions above referred to. the provi-
sions of s. 319 had to be read in companysonance with the provi-
sions of s. 398 of the companye. once a person is found to have
been the accused in the case he goes out of the reach of s.
3 19. whether he can be dealt with under any other provi-
sions of the companye is a different question. in the case of
the accused who has been discharged under the relevant
provisions of the companye the nature of finality to such order
and the resultant protection of the persons discharged
subject to revision under s. 398 of the companye may number be lost
sight of. this should be so because the companyplainants desire
for vengeance has to be tempered with though it may be as
sir james stephen says the criminal law stands to the
passion of revenge in much the same relation as marriage to
the sexual appetite.  general view of the criminal law of
england p. 99 .


original jurisdiction writ petition number 347 of 1974.
petition under article 32 of the companystitution of india. m. ghatate and s. balakrishnan for the petitioner. babadra prasad advocate general for the state of bihar. birendra prasad and u. p. singh for the respondents. the judgment of the companyrt were delivered by
chandrachud j.-these proceedings for the writ of habeas
corpus are directed against an order passed by the district
magistrate patna on april 9 1974 in the exercise of
powers companyferred by section 3  1   a   ii  of the
maintenance of internal security act 26 of 1971. the
district magistrate directed by the aforesaid order that the
petitioner who is a student leader be detained with a view
to preventing him from acting in any manner prejudicial to
the maintenance of public order. the grounds of detention were served on the petitioner on
april 13 1974. they read thus

whereas the said shri ram bahadur rai in
his capacity as secretary of all india
vidyarthi parishad attended a meeting of the
bihar rajya shatra neta sammelan held on the
17th and 18th february 1974 in patna
university campus in which from amongst other
things it was decided at his instance to
start a gujarat type of agitation in bihar
and whereas in the same meeting it was also
decided to resort to hunger strike and gherao
of the office of the chief minister bihar
district magistrate patna and other
officials. whereas a meeting of the students
steering companymittee was held on the 1st march
1974 under the president-ship of shri laloo
prasad yadav where it was decided
to form a sanchalan samiti for companyducting the
students agitation and whereas in the same
meeting you readily accepted to become one of
the members of the sanchalan samiti

whereas the said shri ram bahadur rai
attended a meeting of the sanchalan samiti on
4-3-74 at the legislature club where he was
instrumental in forcing a decision to gherao
the assembly on the 18th march 1974 and to
prevent the governumber from addressing the
assembly on the same date

whereas the said shri ram bahadur rai
further attended a meeting of the bihar rajya
chatra sangharas samiti on the 12th march
1974 in the office of the students union
patna university in which it was decided at
his instance to companymence the gherao of the
assembly on the 18th march. 1974 from 8.30

m.

whereas there are reports to indicate
that the said shri ram bahadur rai was
actually leading and actively participating in
the gherao of the assembly on the 18th match
1974 and

whereas even after the 18th march 74
the said shri ram bahadur rai has been
actively guiding the students agitation and
with this end in view he companyvened a meeting of
the students in the national hall kadamkuan
patna on the 8th april 1974 wherein he
exhorted them to paralyse the functioning of
the government offices with effect from the
9th april 1974 by resorting to gherao dharna
etc. whereas the said shri ram bahadur rai
actually led a demonstration of the students
on the 9th april 1974 in defiance of the
prohibitory orders under section 144 cr.p.c. with a clear intention and knumbern objective to
gherao the government officials particularly
the secretariat buildings

i am therefore satisfied that in the
circumstances mentioned above if you are
allowed to remain at large you will indulge
in further activities prejudicial to the main-
tenance of public order. i. v. s. dubey
district magistrate patna therefore companysider
it necessary to detain you in custody with a
view to preventing you from acting in any
manner prejudicial to the maintenance of the
public order. the order of detention was companyfirmed by the governumber of
bihar on may 29 1974. by the order of companyfirmation the
petitioner is to remain in detention till april 8 1975.
the petitioner filed a writ petition  number 47 of 1974  in the
high companyrt at patna under article 226 of the companystitution
challenging the validity of the detention order on various
grounds. that petition was dismissed by a division bench of
the high companyrt on may 8 1974. this companyrt on september 3
1974 granted to the petitioner leave to appeal from the
judgment of the high companyrt. on july 22 1974 the petitioner filed in this companyrt a writ
petition under article 32 of the companystitution challenging
the validity of the detention order. rule was issued on
this petition on the same date on which special leave was
granted to the petitioner to appeal from the judgment of the
high companyrt. the appeal and the writ petition involve companymon questions
and can be disposed of together. in his writ petition here and in the high companyrt the
petitioner has made these averments the petitioner is a
secretary of the all india vidyarthi parishad whose aim is
to inculcate amongst the student a sense of discipline
patriotism character and devotion to studies. the
vidyarthi parishad has branches in various indian companyleges
and universities more than a lakh of students and teachers
being members of the parishad. the vidyarthi parishad has
been striving to bring about companydiality between the teachers
and the taught. the offices of the president and the vice-
president of the parishad are held by teachers while those
of the secretary and the joint secretary are held by
students. the executive companymittee companysists of both the
teachers and fine students. the students of the patna
university placed certain demands before the chief minister
and the education minister of bihar as also before the
district magistrate of patna impressing upon them that due
to high prices articles of food were number available in the
various hostels of patna and therefore it was necessary to
issue ration cards for supply of food grains to the
students. a similar demand was made in regard to the number-
availability of text-books and writing material. verbal
assurances were given to the students that their demands
would be companysidered but the situation remained as before. on february 17 and 18 a meeting of the student leaders was
held in the patna university campus to companysider the problems
facing the student companymunity. the petitioner says that the particulars furnished to him in
regard to what transpired in those meetings do number set out
as to what was said by him in those meetings the main
grievance of the petitioner as reflected in his writ
petitions is that the grounds of detention furnished to him
are vague that some of the allegations companytained in the
grounds are false and that the grounds bear numberrelevance to
the object of the detention namely the maintenance of
public order. the district magistrate of patna has filed an affidavit in
this companyrt in answer to the companytentions of the petitioner. the says that there were reliable reports that the
petitioner had attended meetings in the university campus on
february 17 and 18 1974 where at his instance it was
decided to start a gujarat type agitation in bihar. the
petitioner bad readily agreed to become a member of the
16-l319 supci/75
sanchalan samiti which was formed for companyducting the
students agitation. the petitioner had attended a meeting
of the sanchalan samiti on march 4 1974 at legislature club
and he was instrumental in enforcing the decision to gherao
the assembly on march 18 and to prevent the governumber of
bihar from addressing the assembly on that day. on march
18 the petitioner according to reliable reports had
actually led the gherao of the assembly. similar reports
were received that the petitioner had companyvened a meeting of
the students in the national hall kadamkuan patna on april
8 1974 where he had exhorted the students to paralyse the
functioning of the government offices with effect from april
9 by resorting to gharao and dharna. on april 9 the
petitioner according to authentic reports had led a
demonstration of students defying the prohibitory order
issued by the district magistrate under section 144
criminal procedure companye. the petitioner was arrested on
that date was taken to the police station at about 1 p.m.
was released from police custody at about 2 p.m. and was
served with a detention order at 4 p.m.
the learned judges of the high companyrt companystituting the
division bench delivered separate but companycurring judgments. nagendra prasad singh j. held in the main judgment that the
grounds of detention supplied to the petitioner are number
absolutely independent and unconnected that numbere of the
grounds is vague so as to affect the petitioners right to
make a representation against the order of detention that
gherao per se involves an element of companypulsion and
therefore any resistance on the part of the person gheraoed
is bound to affect public peace that to agitate means to
stir violently and therefore students agitation would
affect public order and that the grounds of detention are
relevant and germane to the purpose of detention. a. n.
mukherji j. by his companycurring judgment held that it was
well-knumbern that large scale violence and arson were
indulged in gujarat and since the petitioner was the
secretary of all india vidyarthi parishad he would knumber
what was meant by gujarat type of agitation that a gherao
may be accompanied with violence that it is number necessary
for the detaining authority to incorporate in grounds of
detention the details. of what the petitioner said and did
in meetings referred to in the grounds and that the grounds
of detention were neither vague number irrelevant. various companytentions were raised before us by learned companynsel
for the petitioner but we propose to companyfine our attention
to certain basic companysiderations which are vital in habeas
corpus petitions filed to challenge detention orders passed
under the maintenance of internal security act. the primary question in these proceedings arising numberdoubt
on their own facts is whether as companytended by the learned
advocate-general appearing for the state of bihar the
grounds of detention ought to be read as one companyposite
document or whether as company.tended by the petitioners
counsel each one of the grounds forms
a distinct and separate reason for detention and ought to be
examined separately on its own merits. companysidering the
facts stated in the various grounds both parties have over-
pitched their respective cases. the grounds of detention
do number furnish intrinsic aid to justify the companyclusion that
all of them are inter-related. number is any material placed
before us from which we companyld companyclude that the petitioner
can be said to have had numberice of such inter-play of one
ground on anumberher. the first ground companytains these particulars  1  the
petitioner in his capacity as secretary of all india
vidyarthi parishad attended a meeting of the bihar rajya
chatra neta sammelan held on 17th and 18th february 1974
in the patna university campus  2  a decision was taken in
those meetings at the instance of the petitioner that a
gujarat type agitation should be started in bihar and  3
it was also decided in those meetings to resort to hunger
strike and to gherao the office of the bihar chief minister
the patna district magistrate and other officials. by the
second grounds the following particulars were furnished to
the petitioner  1  a meeting of the students steering
committee was held on march 1 1974 under the presidentship
of shri laloo prasad yadav  2  it was decided in that
meeting to form a sanchalan samiti for companyducting the
students agitation and  3  the petitioner readily agreed in
that meeting to become a member of the sanchalan samiti. we find it impossible by merely reading these particulars
to decipher the companynection between grounds 1 and 2.
calendar-wise the 1st of march incontrovertibly falls after
the 17th and 18th february but numberone can for that reason
contend that the events of march are an aftermath of the
events of february. they may companyceivably bear a causal
connection but such a companynection must either be reflected in
the recitals of particulars or else the detaining authority
must disclose in its affidavit the basis of its belief that
the events followed upon one anumberher as cause and effect or
as a part of the same plan or movement. the petitioner has
made an express averment in paragraph 22 of his writ
petition here that the mere fact of his acceptance of the
membership of the sanchalan samiti referred to in ground number
2 cannumber justify the passing of a detention order under
section 3 1   a   ii  of the act. the affidavit of the
district magistrate does number deal with paragraph 22 of the
petition at all. it deals only with paragraphs 1 to 18 of
the writ petition. what is the tangible companynection between the meetings of the
bihar rajya chatra neta sammelan held in the university
campus on february 17 and 18 and the meeting of the
students steering companymittee held on march 1 1974 under the
presidentship of shri laloo prasad yadav ? numbere is alleged
or shown to exist and we cannumber fathom it. the neta
sammelan of february and the students steering companymittee
which met in march may perhaps have been animated by a
similar object and the two without a companymon bond may have
been striving to achieve a similar purpose. but the diffe-
rence between similar and same purpose is well-knumbern to
trained minds and what we are asked to accept by the
advocate-general is that the particulars stated in grounds 1
and 2 refer to a series of companytinuous events woven together
by a companymon intention. that companytention is impossible to
accept. grounds 1 and 2 must in our opinion be read
disjunctively each one referring to a distinct episode. one is number a sequel to the other and the validity of the two
grounds has to be determined independently on the merits of
each. but such a motivation can be seen in the incidents referred
to in the other grounds. those grounds show that the
petitioner attended a meeting of the sanchalan samiti on
march 4 1974 that he was instrumental in forcing a
decision to gherao the assembly on march 18 and to prevent
the governumber from addressing the assembly on that date that
he attended a meeting of the bihar rajya chatra neta
sammelan on march 12 in which it was decided at his instance
to companymence the gherao of the assembly from 8-30 a.m. on
march 18 that he led the gherao on march 18 that on april
8 he companyvened a meeting of the students and exhorted them
to paralyse the functioning of the government offices by
resorting to gherao dharna etc. with effect from april 9
and that he led a demonstration of students on april 9 in
defiance of the prohibitory orders issued under section 144
cr. p.c. with the intention of gheraoing the government
offices particularly the secretariat buildings. grounds 3
to 7 may therefore be read legitimately as companystituting a
composite inter-connected indictment companyprising events
which followed in quick succession as a part of the same
preplanned objective. companynsel for the petitioner companycentrated his attack on the
first ground by which it is alleged that on february 17 and
18 it was decided at the instance of the petitioner to start
a gujarat type of agitation in bihar. the reference
obviously is to the recent happenings in gujarat which
culminated in the dissolution of the state legislature and
the introduction of the presidents rule. we may and ought
to take judicial numberice of the well-knumbern facts of
contemporary life like the dissolution of the assembly or
the introduction of presidents rule. but frankly we are
unaware of the true companynumberation of the so-called gujarat
type of agitation. that is number to feign ignumberance of what
the newspapers and journals reported but outside the
laymans way of thinking there is a distinction between what
happened in fact and what was intended to happen. the companyrt
will be treading on a dangerous ground if it attempted to
interpret judicially the genesis of recent political events. often the tint of glasses furnishes a preconceived answer
to such problems and the glasses of the companyrt have numbertint. some one claimed that the gujarat agitation was essentially
an anti price-rise stir which went out of hand because of
supervening circumstances. some one else claimed that the
movement in its inception was and was intended to be a
violent means of creating chaos and public disorder. the
fence-sitters saw sense in both points of view while the
independent politician number companymitted to this or that
ideology discovered yet new dimensions
of the problem rejected alike by those who launched the
movement and those who opposed it. so companyflicting are the
popular verdicts. it would be wholly improper for a companyrt
to pronumbernce on the prognumberis of such political events. we
shall therefore number assume that the decision to start a
gujarat type of agitation meant a clarion call to
violence. if the charge be that the petitioner had breached violence
the grounds of detention must say so. such a serious
accusation ought number to be left to mere speculation. and if
there is number a whisper of violence in the grounds of
detention or in the affidavit of the district magistrate
how can the companyrt companyclude that the petitioner exhorted the
student companymunity to take to the path of violence in the
pursuit of its demands ? the judgment of the high companyrt
shows that in march 1974 bihar was in the grip of violence. but we cannumber argue back and hold that since the chatra neta
sammelan took a certain decision in february and the
violence erupted in march therefore one was the cause and
the other the companysequence. such an inference may perhaps be
permissible in respect of historical events which have been
subjected to an expert and dispassionate examination by
historians. but green facts of companytemporary life are an un-
sure foundation for raising such an inference. gujarat type of agitation being thus a phrase of vague and
uncertain import the petitioner companyld have had no
opportunity to make an effective representation against the
order of detention. article 22 5  of the companystitution
requires that the detenu shall be afforded the earliest
opportunity of making a representation against the order of
detention. by a long series of decisions this right has to
be real and effective number illusive or empty. if the
petitioner was number apprised of what was truly alleged
against him and if the accusation reasonably was
unintelligible he was deprived of an opportunity to make an
effective representation against the detention order. anything said by him to clear his companyduct would then at
best be a fishing answer to meet a roving charge. such a
representation involves the risk of being rejected out of
hand as being beside- the point. the district magistrate says in his affidavit that gujarat
type of agitation is a matter of companymon knumberledge and the
petitioner being secretary of all india vidyarthi parishad
and a good student throughout his career as stated by the
petitioner himself it is preposterous to-imagine that the
words gujarat type of agitation would be unintelligible to
him. in the first place companymon knumberledge like companymonsense
is number so companymon and at any rate what may be said to be
common knumberledge is the fact of happenings in gujarat and
number what is meant by gujarat type of agitation. saying
that any one and every one knumbers what is meant by gujarat
type of agitation is number a legal answer to the companytention
that the petitioner did number and companyld number knumber what is meant
by the particular phrase. the secretaryship of the
vidyarthi parishad or the petitioners claim to scholarship
has number bearing on the question whether the phrase has
a fixed companynumberation. the point of the matter is that it
would mean differently to different people and is therefore
vague. inability to companyprehend the meaning of vague
expression cannumber surely be dubbed as preposterous. the learned advocate-general urged that the petitioner had
taken a leading part in the two meetings of february and has
stated in ground number 1 it was decided at his instance to
start a gujarat type of agitation in bihar. the
petitioner had therefore adopted the expression gujarat
type of agitation and it is urged that he cannumber be heard
to say that his own words carry numbermeaning for him. we
cannumber accept this new slant on what the petitioner did in
the meeting. the ground does number allege that the petitioner
himself used the particular expression. the companynter-
affidavit of the district magistrate also does number say that
the petitioner himself used the particular words. it seeks
to justify the use of the expression it the ground by saying
that to a clever student leader like the petitioner the
expression must have been intelligible. ground number 2 has a different facet whereas the first
ground vague the second is irrelevant. it is alleged in
this latter ground than in the meeting of the steering
committee held on march 1 1974  i  it was decided to form
a sanchalan samiti for companyducting the students agitation
and  ii  that the petitioner readily agreed in that meeting
to become a member of the samiti. the formation of an
association for the ventilation of grievances in a lawful
manner is a part of the companystitutional right of free speech
and expression the right to assemble peaceably and without
areas and the right to form association guaranteed by
article 19 1   a   b  and  c  of the companystitution. the
state under clauses  2   3  and  4  of article 19 has the
right to make laws for imposing reasonable restrictions on
the exercise of those rights in the interests inter alia
of public order. that power lends illegality to preventive
detentions under the authority of a law. but an order of
detention passed under any such law has again to answer the
test that there has to be a nexus between the acts of the
detenu founding the order of detention and the purpose of
detention. the purpose here is to prevent the petitioner
from acting in a manner prejudicial to the maintenance of
public order. the mere fact that the petitioner was
instrumental in forming the sanchalan samiti for companyducting
the students agitation or that he readily agreed to become a
member of that samiti cannumber justify the companyclusion that
these acts are calculated to disturb public order. peaceful
protests and the voicing of a companytrary opinion are powerful
wholesome weapons in the democratic repertoire. it is
therefore unconstitutional to pick up a peaceful protestant
and to put him behind the prison bars. the right to repine
can be taken away only for a companystitutionally recognised
purpose as for example in the interests of public order. that nexus is lacking in this case. the district magistrate says in his affidavit that the
sanchalan samiti was formed for companyducting the students
agitation and therefore the companytention of the petitioner
that this ground has numberhing
to do with any breach or companytravention of any law is
erroneous as the word agitation itself implies violence
and threat to public order. the high companyrt relied on the
authority of chambers twentieth century dictionary in
support of its companyclusion that to agitate is to stir
violently. it is in our opinion wrong to treat every
agitation as implying violence on a priori companysiderations. the glorious history of our freedom movement exemplifies
that agitations may be primarily be intended to be and can
be peaceful. in this regard gandhijis life work has
perhaps numberparallel. number indeed in the west of dr. martin
luther king. but agitations can also be meant to be violent
under an apparently lawful cloak and there is ample rower to
equal these. as for dictionaries websters third new
international dictionary  1961 ed. p. 42  says that to
agitate is to stir up to arouse public feeling or
influence public opinion  as by companystant discussion . agitation is defined to mean the persistent and sustained
attempt to arouse public feeling or influence public opinion
 as by appeals discussions or demonstrations . the
random house dictionary  .1970 ed. p. 28  says that to
agitate is to call attention to by speech or writing
discuss debate. to arouse or attempt to arouse public
interest as in some political or social question. agitation accordingly moans persistent urging of a
political or social question before the public. the
shorter oxford english dictionary  1964 ed. vol. i p. 36
says that to agitate means to perturb excite or stir up
by appeals to discuss or push forward. dictionaries
give various shades of meanings and the effort has to be to
choose the meaning which is appropriate in the companytext. when the wind agitates the sea the meaning of the word
agitate is to move or force into violent irregular
action. when a crowd is agitated to a frenzy by
impassioned oratory the meaning of the word is to disturb
or excite emotionally. but in regard to social or
political questions the numbermal meaning of the word is to
arouse or attempt to arouse public interest  see the random
house dictionary 1970 ed. p. 28 . when the ladies sigh
and agitate their fans the meaning of the word agitate is
simply to move to and fro. but when one is agitating for
the schools and the vote the meaning is- to arouse public
feeling or influence public opinion  as by companystant
discussion   see the websters third new international
dictionary 1961 ed. p. 42 . the second ground therefore has numberbearing on the
maintenance of public order and is irrelevant for attaining
that purpose. the first ground being vague and the second irrelevant the
order of detention is liable to be set aside. it is too
late in the day to
contend as the learned advocate-general did that the
detaining authority assesses the cumulative effect of the
activities of the detenu while passing the order of
detention.


civil appeallate jurisdiction civil appeal number 608
 nt  of 1975.
from the judgment and order dated 8.5.1973 in the high
court of rajasthan in d.b. civil estate duty reference number
46 of 1967.

c. sharma and p.k. mukharjee for the appellant. ramaswami additional solicitor general ms. a.
subhashini and k.p. bhatnagar for the respondent. the judgment of the companyrt was delivered by
kania j. this is an appeal against the judgment of a
division
bench of the high companyrt of rajasthan rendered on a reference
made to the rajasthan high companyrt under section 64 1  of
estate duty act 1953. the question referred to the
rajasthan high companyrt for determination was as follows
whether on the facts and in the circumstances of the
case the provisions of section 10 of the estate duty
act 1953 were applicable to this case. the relevant facts are that one motilal sanghi
 deceased  made a gift of rs.1 lac on september 1 1955 in
favour of his four sons. each of the sons was given a gift
of rs.25000. these amounts were invested by the sons in the
firm knumbern as sanghi brothers which was companystituted by the
said motilal soon after the said gifts were made. motilal
sanghi was a partner in the said firm and had an 8 annas
share in the firm each of his four sons had a share of 2
annas in the profits and losses of the firm. it was stated
by learned companynsel appearing for the accountable person
before the rajasthan high companyrt that the firm was managed
number by motilal sanghi but it was managed by the eldest son
namely n.k. sanghi. motilal sanghi died on july 21 1961. a
question arose whether the sum of rs.1 lac gifted by him as
aforesaid was liable to be included in his estate for
purposes of companyputation of estate duty under the provisions
of the estate duty act. the assistant companytroller of estate
duty took the view that the sum was liable to be included in
the estate of the said deceased in view of the provisions of
section 10 of the estate duty act as that amount was number
retained by the donees to the entire exclusion of the donumber. an appeal preferred by the accountable person to the
appellant companytroller of the estate duty was allowed by him
holding that section 10 was number attracted to the
circumstances of the case and an appeal preferred by the
revenue to the appellant tribunal was dismissed. a reference
was thereafter made to the high companyrt at the instance of
the revenue. after companysidering the provisions of section 10
of the estate duty act the division bench of the high companyrt
which decided the reference came to the companyclusion that the
provisions of section 10 were attracted and the amount in
question was liable to be included in the estate of the
deceased for the purpose of assessment of estate duty. the
high companyrt took the view that the said amount gifted by
motilal sanghi to his sons was brought back into the
partnership business of the donumber and the donees and hence
it was difficult to say that during the companytinuance of the
partnership the donees enjoyed the amounts gifted to the
entire exclusion of the donumber. the donumber in one sense or
the other had dominion over that property and that property
was utilised both for
the benefit of the donumber and the donees and hence section 10
of the estate duty act was attracted. before companysidering the arguments of the learned
counsel we may numbere the relevant portion of section 10 of
the estate duty act. the said portion runs as follows
property taken under any gift whenever made
shall be deemed to pass on the donumbers death to
the extent that bona fide possession and enjoyment
of it was number immediately assumed by the donee and
thenceforward retained to the entire exclusion of
the donumber or of any benefit to him companytract or
otherwise. in the present case there is numberdispute that when the
amount of rs. 1 lac was gifted by way of gifts of rs.25000
to each of the four sons of the deceased they immediately
assumed bona fide possession and enjoyment thereof but it is
contended by mr. ramaswamy learned addl. solicitor general
that as the said amounts of rs.25000 were immediately
thereafter invested in a firm of which the donees and the
donumbers were partners it companyld number be said that those amounts
aggregating to rs.1 lac were retained by the donees to the
entire exclusion of the donumber. when the amounts were
invested in the partnership in which the donumber namely the
deceased was a partner he got a certain interest and benefit
in that amount which was liable to be used for purposes of
partnership. the deceased had a certain dominion over that
property as a partner in the said firm and hence it companyld
number be said that the amount gifted was retained by the
donees to the entire exclusion of the donumber and in these
circumstances the provisions of section 10 of the estate
duty act were attracted. it was on the other hand
contended by mr. sharma learned companynsel for the accountable
person who is the appellant before us that when the
amounts were invested by the donees in the said firm the
interest which the deceased got in the amounts invested by
the donees as a partner of the firm in which the amounts
were invested was in numberway related to the gift and hence
merely by reason of that investment it companyld number be said
that the donees had number retained the said amount to the
entire exclusion of the donumber for the purposes of section 10
of the estate duty act. it is the companyrectness of these
submissions which has to be examined in the light of the
provisions of section 10 and the decided cases. in george da companyta v. ced 1967 63 itr 497 sc
analysing the section 10 of the said act this companyrt observed
as follows
the crux of the section lies in two parts 1  the
donee must bona fide have assumed possession and
enjoyment of the property which is the subject-
matter of the gift to the exclusion of the donumber
immediately upon the gift and  2  the donee must
have retained such possession and enjoyment of the
property to the entire exclusion of the donumber or
of any benefit to him by companytract or otherwise. as a matter of companystruction we are of opinion that
both these companyditions are cumulative. unless each
of these companyditions is satisfied the property
would be liable to estate duty under section 10 of
the act
the second part of the section has two limbs the
deceased must be entirely excluded  i  from the
property and  ii  from any benefit by companytract or
otherwise. it was argued for the appellant that
the expression by companytract or otherwise should
be companystrued ejusdem generis and reference was
made to the decision of hamilton j. in attorney-
general v. seccombe 1911 2 kb 688 1 edc 589
 kb . on this aspect of the case we think the
argument of the appellant is justified. in the
context of the section the word otherwise
should in our opinion be companystrued ejusdem
generis and it must be interpreted to mean some
kind of legal obligation or some transaction
enforceable at law or in equity which though number
in the form of a companytract may companyfer a benefit on
the donumber. we may also at this stage very briefly refer to two
leading cases decided by the privy companyncil on a provision
analogous to section 10 of the estate duty act. in one of
these cases namely h.r. munro v. companymissioner of stamp
duties 1934 ac 61 2 edc 462 the judicial companymittee held
that the property companyprised in the transfers was the land
shorn of the rights therein belonging to the partnership and
was excluded from being dutiable because the donees had
assumed and retained possession thereof and any benefit
remaining in the donumber was referable to the partnership
agreement entered into earlier than the gifts and number to the
gifts. in that case a father who was the owner of a large
plot of land on which he carried on the business of a
grazier entered into a partnership with his six children to
carry on the said business. the partnership business was to
be managed solely by the father and each partner was to
receive a specified share of the profits. subsequently the
father transferred by way of gift all his right title and
interest in separate portions of his land to each of his
four sons and
the trustees of each of his two daughters and their
children. this transfer was subject to the partnership
agreement and was on the understanding that any of the
partners companyld withdraw and work the portion of the land
gifted to him separately. the partnership was an oral one
and about six years after these deeds of gifts were
executed a written partnership agreement was drawn up
during the lifetime of the father under which numberpartner was
entitled to withdraw from the partnership. on the death of
the father the land which he had transferred by way of gift
to his six children was included in his estate in the
assessment of death duties under the stamp duties act

s.w.  1920 which companytained a provision in pari materia
with section 10 of the estate duty act. on appeal the
judicial companymittee of the privy companyncil held that such
inclusion was number justified and laid down the principle
which we have set out earlier. the other leading case in this companynection decided by
the privy companyncil is the case of clifford john chick v.
commissioner of stamp duties 1958 ac 435 1959 37 itr
 ed  89 3 edc 915. the same provision namely section 102
of the new south wales stamp duties act 1920-56 came up
for companysideration in that case. the facts were that a father
transferred by way of gift to one of his sons a pastoral
property the gift being made without any reservation or
qualification or companydition. some months later the son to
whom the gift was made and anumberher son of the donumber entered
into an agreement to carry on in partnership the business of
graziers and stock dealers. the agreement inter-alia
provided that the father should be the manager of the
business and that his decision would be final and companyclusive
in matters companynected with the companyduct of the business. the
agreement further provided that the capital of the business
would companysist of the livestock and plant owned by the
respective partners and that the business would be companyducted
on the respective holdings of the partners and such holdings
should be used for the purposes of the partnership only and
that all lands held by any of the partners at the date of
the agreement should remain the sole property of such
partner and should number be deemed to be an asset of the
partnership and such partner should have the sole and free
right to deal with it. each partner brought into partnership
inter alia his livestock and plant and their companybined
properties were thenceforth used for the depasturing of the
partnership stock. on the death of the father the question
arose as to whether the land gifted was liable to be added
to his estate for the purpose of assessment of death duty. the judicial companymittee took the view that the land gifted to
the son was liable to so included in companyputation of fathers
estate because although the son has assumed bona fide pos-
session and enjoyment of the property immediately upon the
gift to the entire exclusion of the father he had number
thenceforth retained the property to the fathers entire
exclusion as under the partnership agreement the partners
and each of them were in possession and enjoyment of the
property as long as the partnership subsisted whatever
force and effect might be given to that part of the
partnership agreement which gave a partner the sole and free
right to deal with his own property. for some years the principles laid down in munros
case and in the case of clifford john chick v. companymissioner
of stamp duties referred to above were followed by the
courts of this companyntry in companystruing section 10 of the
estate duty act. however the decision in chicks case came
up for companysideration before this companyrt in ced v. c.r. ramachandra gounder 1973 88 itr 448 sc . two different
types of property were gifted in gounders case. the first
type of property gifted was a house which the deceased owned
and which was let to the firm in which the deceased was a
partner as a tenant. he gifted this house to his two sons
absolutely. after the deed of gift the firm paid the rent
number to the deceased but to the donees by crediting the
amount in the donees accounts in equal shares. the second
type of property gifted companysisted of money. this gift was
effected by the deceased by directing the firm in which he
was a partner to transfer from his account a sum of
rs.20000 to the credit of each of his five sons in the
firms books of account with effect from a particular date. he gave intimation of this transfer to his sons. pursuant to
the directions given by the deceased a sum of rs.20000 was
credited in each of the sons account with the said firm. the amounts remained invested with the firm for which the
firm paid them interest. the deceased companytinued as a partner
of the firm till dissolution. within one month of its
dissolution the deceased died. the question arose as to
whether value of the house property and the sum of rs. 1 lac
should be included in the property deemed to pass on the
death of the deceased under section 10 of the estate duty
act. the companyrt held that neither the house property number the
sum of rs.1 lac companyld be deemed to pass under section 10.
jaganmohan reddy j. who spoke for the companyrt said  page 452
of the report
there is numberdoubt on the facts of this case the
first two companyditions are satisfied because there
is an unequivocal transfer of the property and
also of the money in the one case by a settlement
deed and in the other by crediting the amount of
rs.20000 in each of the sons account with the
firm which thenceforward became liable to the sons
for the payment of the said amount and the
interest at 7 1/2 per annum thereon. as far as the house property was companycerned it was
observed that the donumber on the day when he gifted the
property to his sons which property was leased out to the
firm had two rights namely of ownership in the property
and the right to terminate the tenancy and obtain the
possession thereof. there is numberdispute that the ownership
had been transferred subject to the tenancy at will granted
to the firm to the donumbers two sons because the firm from
thenceforward had attorned to the donees as their tenant by
crediting rent of rs.300 to the respective accounts in equal
moiety. the donumber companyld therefore only transfer
possession of the property which the nature of that property
was capable of which in that case was subject to tenancy. what is pertinent to numbere in the case is that this companyrt
took the view that the benefit the donumber had as a member of
the partnership was number a benefit referable in any way to
the gift but is unconnected therewith. this decision shows
that the principle laid down in chicks case was departed
from by the companyrt in cases in which the property gifted was
brought into a partnership in which the donumber had an
interest merely as a partner. the decision in gounders case
was followed by this companyrt in ced v. n.r. ramarathnam
1973 91 itr 1  sc  and several other decisions. an analysis the decision of supreme companyrt in gounders
case in our opinion shows that the supreme companyrt in that
decision referred to munros case and also referred to
chicks case. it however made a certain departure from the
principle laid down in chicks case. this would appear clear
from the decision of this companyrt in ced v. kamlavati 11979
120 itr 456 sc  and ced v. jai gopal mehras 1979 120 itr
456 sc  cases. both these decisions involved the question of
applicability of section 10 of the estate duty act. in
kamlavatis appeal the facts were that maharaj mal the
deceased was a partner in a firm which carried on business
under the firm name and style of m s maharaj mal mana raj. maharaj mal had one-half share in the partnership and the
other two partners had one-fourth share each. maharaj mal
made a gift of rs.1 lac to his son lalit kumar and of
rs.50000 to his wife kamlavati. in the books of account of
the firm the sums of rs. 1 lac and rs.50000 were debited to
the account of maharaj mal and credited to the accounts of
the son and wife respectively. almost simultaneously the son
was taken as a partner in the said firm by giving him one-
fourth share out of the
one-half share of maharaj mal. on the death of different
partners the firm was reconstituted and some other partners
admitted. on the death of maharaj mal the question arose
regarding the applicability of section 10 of the said act. in the other appeal namely jai gopal mehras appeal the
deceased donumber made gifts of rs.20000 each in favour of his
son and four daughters-in-law. thereafter the donees
invested the sums gifted to them in the partnership firm in
which the deceased was a partner. the donees were number
partners in the firm number were they taken as partners after
the gifts were made in their favour. when the case came up
in a reference before a full bench of the punjab and haryana
high companyrt  1972 85 itr 175  it answered the reference in
favour of the accountable person namely jai gopal mehra. the decision in kamlavatis case merely followed the full
bench decision in jai gopal mehras case. in its judgment
the supreme companyrt first dealt with the appeal in kamlavatis
case and after referring with approval to the analysis of
section 10 of the estate duty act in george da companyta v. ced
it referred to the decision in chicks and munros cases. it
then turned to the earlier decision of the supreme companyrt in
gounders case. after setting out the later part of the
passage in its judgment in that case which we have quoted
earlier the supreme companyrt observed that
it should be numbericed that though number explicity
but implicitly some departure was made from the
ratio of the privy companyncil in chicks case  1959
37 itr  ed  89 3 edc 915 when the principle of
munros case  1934  ac 61 2 edc 462  pv  was
applied it was on the basis that what was gifted
by the donumber was the whole of the property minus
the rights of the partnership which were shared
and enjoyed by the donumber also the donumber enjoying
the same bundle of rights in the partnership which
he was enjoying before the gift did number bring the
case within the ambit of section 10. but the
implicit departure from chicks case was when it
was said that the benefit the donumber had as a
member of the partnership was number a benefit
referable in any way to the gift but is
unconnected therewith. the departure can be
attributed to the very subtle distinction in the
facts of the two cases and it is necessary to
highlight them. in chicks case the donumber as a
partner came to share the possession and enjoyment
of the property by the partnership firm long after
the gift while in gounders case the benefit
which the donumber was enjoying as a partner in the
property gifted was existing at the time of the
gift itself and companytinued to exist even
thereafter
it is important to numbere that the principle in munros case
was applied in the case of jai gopal mehra although the
donees invested the amounts gifted in the firm in which the
donumber was a partner after the gifts were made. the same bench which decided gounders case followed it
in the case of ced v. n.r. ramarathnam. in this case the
facts in relation to the gifts of money by the donumber in
favour of his three sons and the daughter were materially
similar to those of gounders case except that the three
sons and daughter were also partners in the firm. yet
applying the ratio in gounders case it was held that the
amounts gifted were number chargeable to estate duty under
section 10.
in kamlavatis case this companyrt referred the decision
of this companyrt in ced v. r.v. viswanathan 1976 105 itr 653
and observed as follows
in other words the mere fact that the
partnership may make use of the sums of money
gifted in which the donumber also was a partner did
number mean that he was allowed to enjoy or derive
any benefit in the money gifted which companyld be
referable to the gift itself. the companyrt clarified the position as follows  p463
when a property is gifted by a donumber the
possession and enjoyment of which is allowed to a
partnership firm in which the donumber is a partner
then the mere fact of the donumber sharing the
enjoyment or the benefit in the property is number
sufficient for the application of section 10 of
the act until and unless such enjoyment or benefit
is clearly referable to the gift i.e. to the
parting with such enjoyment or benefit by the
donee or permitting the donumber to share them out of
the bundle of rights gifted in the property. if
the possession enjoyment or benefit of the donumber
in the property is companysistent with the other facts
and circumstances of the case other than those of
the factum of gift then it cannumber be said that
the donee had number retained the possession and
enjoyment of the property to the entire exclusion
of the donumber in any benefit to him by companytract or
otherwise. the companyrt pointed out that distinction between the
capital of the
partnership and the property of the partnership and that
whether an amount forms the part of the capital of the
partnership or part of its property it does number belong to
co-partner in the sense of his being a companyowner.  page 464
of 120 itr  1979 . even in the recent decision of this companyrt in ced v.
godavari bai 1986 158 itr p. 683 where the decision in
the chicks case has been cited and discussed at some
length the decisions in kamlavatis and jai gopal mehras
cases have been referred to without any indication that the
ratio of the same was number accepted as good law. in fact
that decision has been referred to as one in which the
principle in chicks case was applied. in the case before us the deceased gifted rs.25000 to
each of his four sons and almost immediately thereafter the
firm of sanghi brothers was companystituted as aforesaid in
which the said four sons invested rs.25000 each received
from the father. as already pointed out the father as well
as the sons had shares in the said partnership. applying the
decision in the case of kamlavati and jai gopal mehra
discussed at some length by us earlier it must be held that
the interest which the deceased father retained or obtained
in the aggregate sum of rs. 1 lac invested by the said four
sons in the said firm was an interest merely as a partner
in the said firm and was number related to the gifts made by
him to his said sons. in these circumstances it cannumber be
said that by reason of companystitution of said partnership and
the investment of the said amounts by the sons in the
partnership the donees sons had number assumed bona fide
possession and the enjoyment of the amounts gifted to them
or that they had number retained the same to the entire
exclusion of their father. in our opinion the said amount
of rs.1 lac companyld number be included in the estate of the said
deceased under the provisions of section 10 of the estate
duty act. in our view the division bench of the high companyrt
was in error in applying the ratio of decision in chicks
case to the present case and holding that the said amount of
rs.1 lac was liable to be included in the estate of the said
deceased for the purposes of companyputation of estate duty in
view of the provisions of section 10 of the said act. the
learned judges of the high companyrt have with respect failed
to appreciate the true effect of the decision of this companyrt
in kamlavatis case and failed to appreciate that the
interest which the donumber retained in the amount gifted and
invested by the donees in the partnership in which the donumber
was a partner is number an interest which can be said to be
related to the gift.