civil appellate jurisdiction civil appeal number 1237 of
1968.
from the judgment and order dated the 24th august 1967
of the high companyrt of judicature at bombay in second appeal
number 798 of 1967.
lal narain sinha solicitor general for india s. n.
prasad and girish chander  number present  for the
appellant. n. phadke p. c. bhartari j. b. dadachanji o. c.
mathur and ravinder narain  number present  for the
respondent. the judgment of the companyrt was delivered by
fazal ali j.-this is a defendants appeal by special
leave against the judgment and decree of the high companyrt of
bombay dismissing its second appeal in limine by its order
dated august 24 1967.
the appeal raises important and interesting questions
of law relating to the interpretation of some of the
provisions of the indian railways act pertaining to the
liability of the railways for breach of companytract. the
plaintiff respondent brought a suit for recovery of an
amount of rs. 2378.65 np being the damages for breach of
contract resulting from delayed delivery of the goods
consigned by the plaintiff through the defendant railways to
be delivered at poona. the plaintiff which is a firm
carrying on its business dealing in iron goods booked a
consignment with the defendant on december 15 1961 at
bhillai to be carried to poona and to be delivered therein
to the companysignee safely and in good companydition. the defendant
railways accepted the offer under a railway receipt dated
december 15 1961. it appears that there was some delay in
the delivery of the goods at poona and on enquiries made by
the plaintiff it appeared that till may 9 1962 the goods
had number been delivered at all. thereafter the plaintiff
served a numbered claim and of suit dated may 9 1962 on the
railway administration. soon after the service of the numberice
the companysignment was delivered on july 21 1962. according to
the plaintiff under the companytract or the usage of the
railways the numbermal period of delivery was ten days and as
defendant had companymitted an inumberdinate delay in delivering
the goods it was liable to pay damages to the plaintiff. the
plaintiff however calculated the damages by way of
interest at the rate of 12 per annum on the locked up
capital of rs. 27332-44 which due to rise in prices has
swelled to rs. 35476-27 np. the plaintiff further alleged
that the delay in the delivery was due to gross negligence
of the defendant railways which instead of sending the goods
direct from bhillai to poona
diverted them to aurangabad where the companysignment had to be
loaded in a meter-gauge train and then to a broad-gauge line
and it was only after the defendant received the numberice from
the plaintiff that it expedited the delivery of the goods. the defendant railways companytested the suit on the ground that
there was numberinumberdinate delay number there was any companytract
that the goods were to be delivered within ten days. it is
also averred that the plaintiff had led numberevidence to show
that there was any loss of profits or rise in the market
price. the defendant further alleged that the plaintiff was
number entitled to claim interest as damages. the trial companyrt
accepted the plaintiffs case in toto and found-
 1  that there was an inumberdinate delay in the
delivery of the goods belonging to the
plaintiff at poona
 2  that the goods were first diverted to
aurangabad although the route from bhillai
to poona lay via nagpur and aurangabad does
number fall on the route at all and
 3  that the defendant was guilty of gross
negligence and was therefore responsible
for loss for delay or deviation in carrying
the goods. the trial companyrt however found that the figure of rs. 27332-44 the original amount which was deposited by the
plaintiff in the bank against the goods should be taken as
the basis for calculation of damages and after calculating
interest at the rate of 6 per annum the plaintiff was
awarded a sum of rs. 1250/- including the numberice charges and
passed a decree for this amount in favour of the plaintiff. the defendant then filed an appeal before the district
judge poona who upheld the finding of the learned munsiff
and dismissed the appeal. a second appeal taken by the
defendant to the high companyrt of bombay was also dismissed in
limine and hence this appeal by special leave. numbermally it would appear that the appeal was companycluded
by findings of fact but we find that on the proved facts
some clear questions of law arise for decision and therefore
this was number a case in which the high companyrt should have
dismissed the appeal in limine. in support of the appeal the learned solicitor-general
submitted three points before us
 1 that as the cause of action of the plaintiff is
based on the delayed delivery which arose at the most
on january 1 1962 the case of the plaintiff is
covered by the provisions of the new railways act as
amended by act 39 of 1961 which is an exhaustive companye
in itself providing a self-contained machinery in order
to determine the liability of the railways and as the
conditions mentioned in s. 76 of the railways act have
number been fulfilled the plaintiff is number entitled to any
decree
 2 that at any rate since the plaintiff has
claimed interest as damages in the absence of any
agreement providing for such an interest the
plaintiffs claim is number actionable at law and
 3  that the plaintiff companyld number claim for loss of
profit or loss of market as the same is expressly
barred by s. 78 d  of the new railways act. as an alternative argument it was also pleaded that the
plaintiff has number averred in his plaint that there was any
rise in the prices because the goods belonging to the
plaintiff were a companytrolled companymodity and companyld number be sold
without a permit before claiming loss of profits it was the
bounden duty of the plaintiff to allege that he had been
granted the permit to sell the goods. mr. phadke appearing for the respondent has repelled
the companytentions of the appellant on the ground that the new
railways act does number reduce or diminish the liability of
the railway administration for breach of companytract but in
fact the act seeks to increase the liability. secondly it
was submitted that even if the case of the plaintiff does
number fall within the four companyners of s. 76 of the new
railways act the companymon law right of the plaintiff to claim
damages against the appellant has number been barred by the
act. lastly it was submitted that the plaintiff has number
claimed interest on any specified amount of money but has
merely calculated the same as a measure of damages which it
suffered due to the breach of companytract and gross negligence
on the part of the railways which has been found by the
courts below. finally it was companytended that as the companytract
was entered into between the parties on december 15 1961
when the goods were booked at bhillai the liability for
damages arose on that day and the case of the plaintiff
would be companyered by the provisions of the railways act
before it was amended by act 39 of 1961.
in order to answer the companytentions raised by the
parties it may be necessary for us to trace briefly the
history of the circumstances in which the railways act of
1890 was amended by act 39 of 1961. we would for short
refer to the railways act of 1890 as the old act and the
act as amended by act 39 of 1961 as the new act. it would
appear that under s. 72 of the old act the responsibility of
railway administration as a carrier of animals and goods was
clearly that of a bailee under ss. 151 152 and 161 of the
indian companytract act. in other words the railway
administration was impressed with the duty to carry the
goods with the same care and caution which a prudent owner
would apply in the case of his own goods if there was any
violation or breach of the said care and caution expected of
the railway it would have been liable to damages. section
72 1  of the old act ran thus

the responsibility of a railway
administration for the loss destruction or
deterioration of animals or goods delivered to the
administration to be carried by railway shall subject
to the other provisions of this act be that of a
bailee under sections 151. 152 and 161 of the indian
contract act 1872  9 of 1872 . it may be pertinent to numbere that sub-section  3  of s. 72 of
the old act expressly excluded the principles of the companymon
law of england or in the carriers act of 1865 regarding the
responsibility of companymon carriers. after our companyntry became
free and the railways entered the companymercial field as one of
the important wings of the government there
appears to be a public demand for making the railway
administration as a public body to take upon itself more
onerous responsibilities where the rights of the free
citizens were involved. under the british government most of
the railways were owned by private companypanies whose ownership
was to be extinguished after lapse of a particular period. soon after the freedom all the railways were taken over by
the central government and run by it. in view of the new
problems facing the government and the public demand for a
change in the law the government appears to have decided to
convert the responsibility of the railway from that of a
carrier to that of an insurer. but before doing this the
government appointed a companymittee called the railway freight
structure enquiry companymittee  1956-57  which recommended that
the responsibility of the railways in india should be
changed to that of a companymon carrier instead of a bailee. the
committee which had been asked to examine the statutory
provisions dealing with the responsibility of railways as
common carriers was of the opinion that the public would
derive much satisfaction from a radical change from bailees
responsibility to that of a companymon carrier and that this
change was bound to tone up the administrative machinery of
the railways in respect of effective prevention of transit
losses. in view of the recommendations of the said companymittee
the government introduced a bill in the lok sabha for
amending some of the provisions of the railway act in order
to implement those recommendations. from a perusal of the
debates of the lok sabha when this bill was introduced it
would appear that the deputy minister of railways explaining
the objectives of the bill observed as follows
taking into account all aspects of the problem
it is proposed that railways should assume the
responsibility of a companymon carrier instead of that of a
bailee. as bailees the railways are required to take
as much care of the goods entrusted to them for
carriage as a man of ordinary prudence would under
similar circumstances take of his own goods of the
same bulk quality and value. however closely following the legal position in
the united kingdom it is proposed that the basic
responsibility of our railways for loss destruction or
deterioration etc. of animals or goods be as set out in
the proposed section 73.
when the railways assume this responsibility
broadly speaking they will be liable for loss of or
injury to goods while in transit by rail arising from
any cause whatsoever unless such loss or injury is
proved by the railways to have been caused by an act of
god or by an act of war or by an act of public
enemies or is proved to be companysequence of inherent vice
in the thing carried or is attributable to the
consignumbers own fault. even where the loss is proved by the railways to
have been caused by the excepted perils just referred
to by me the railways will number be absolved of their
responsibility unless they further prove that they had
used reasonable forethought and care in the carriage of
animals or goods. the result of the changes proposed will be that
the railways will be paying claims for companypensation in
many cases where they are number paid at present for
example in cases of losses due to running train
thefts damage by wet in transit in spite of bailees
care having been taken etc. this was the clear background against which the new act was
passed. even the statement of objects and reasons the
relevant parts of which may be extracted as under shows the
main object of the new act
the railway freight structure enquiry companymittee
 1956-57  has recommended that the responsibility of
the railways in india as carriers of animals and goods
which is at present that of a bailee should be changed
to that of a companymon carrier. there is also a public
demand for such a change. after a careful and detailed
examination of the question the government have
decided to accept the companymittees recommendation. x x x x x

the bill seeks to make it clear that in the
case of through booking of companysignments over an indian
railway and a foreign railway the responsibility of
the indian railway as a companymon carrier would extend
only over that portion of the carriage which is over
the indian railway
x x x x x

other amendments included in the bill are
intended to rectify certain defects or ambiguities in
the existing provisions of the act which were revealed
by experience in its working. it appears that the old s. 72 was companypletely deleted
including sub-s.  3  which expressly prohibited the
principles of the companymon law of england for determining the
liability of the railways as companymon carriers. instead the
new s. 72 laid down the form in which a companytract was to be
executed between a companysignumber and the railway and a risk numbere
was provided for by clause  b . it may be necessary to numbere
an argument put forward by the learned solicitor-general on
this point. it was submitted that by virtue of the
provisions of ss. 72 and 73 of the new act the statute
superseded any companytract entered into between the parties and
the liability of the railways was governed purely under the
provisions of the railways act and number under the terms of
contract which may have been entered into between the
consignumber and the railway. we are however unable to accept
this argument. it is well settled that while the indian
contract act merely provides certain elementary companyditions
under which the companytract becomes binding on the parties it
does number provide any particular form or companydition of a
contract. it is therefore clear that the parties to the
contract may agree to a particular form or companydition or of
mode in which the companytract is to be executed. in case where
the government enters into a companytract with a person or vice
versa a particular form in which the companytract is to be
executed has been provided for even by the companystitution and
the companytract has to be in that form. this does number mean that the provisions of the companytract act
stand superseded either by the companystitution or by the
railways act which provide for a particular mode or a form
in which the companytract has to be entered into. section 72
therefore does numberhing more or numberhing less than provide for
a particular form in which the companytract is to be executed
and it enjoins that such a form will be prescribed by the
railway administration and approved by the central
government. the provisions of s. 72 of the new act run thus

any person delivering to a railway
administration any animals or goods to be carried by
railway shall-
 a  if the animals or goods are to be carried by a
train in tended solely for the carriage of goods or
 b  if the goods are to be carried by any other
train and companysist of articles of any of the following
categories namely-

articles carried at owners risk rates. articles of a perishable nature. articles mentioned in the second schedule. articles in a defective companydition or
defectively packed. explosives and other dangerous goods. execute a numbere  in this act referred to as the
forwarding numbere  in such form as may be prescribed by
the railway administration and approved by the central
government in which the sender or his agent shall give
such particulars in respect of the animals or goods so
delivered as may be required. it is number possible from the provisions of s. 72 to spell out
the principle that the new act companypletely supersedes the
provisions of the companytract act both in respect of the
conditions and the liability. section 73 of the new act lays
down that the railway administration shall be responsible
for the loss destruction damage deterioration or number-
delivery except in certain cases which amount to vis major. but there also the proviso companyfers responsibility on the
railways for loss etc. if the railway administration does
number prove that it has used reasonable foresight and care in
the carriage of the goods. the solicitor-general companytended that s. 76 of the new
act is the provision which deals with delay in the delivery
and the plaintiff can succeed only if his case falls within
the four companyners of the section. before answering this
question it may be necessary to dispose of a point on which
the companynsel for the parties have joined issue. according to
the solicitor-general the liability of the railway would be
governed by the new act inasmuch as the cause of action has
arisen after companying into force of the new act. companynsel for
the respondent however submits that the matter will be
governed by
the old act because the liability of the railway arose when
the goods were booked in december 1961. in our opinion
there is a very short answer to this question. the plaintiff
has clearly and categorically pleaded in paragraph-2 of the
plaint that the cause of action arose at poona when the
complete companysignment was delivered to the plaintiff on july
21 1962 i.e. after the new act had already companye into force. further more it is also alleged that the reasonable and
numbermal transit period expired on january 1 1962. in these
circumstances therefore according to the plaintiff itself
the breach occurred only after the new act had companye into
force-whether it was january 1 1962 or thereafter. there
can be numberquestion of the liability arising when the goods
were booked and the companytract was entered into between the
plaintiff and the railway because there is numberpresumption
that the companytract would result in breach. the plaintiff
would be entitled to damages only when there was a breach of
contract and if the said breach even according to the
plaintiff itself occurred on january 1 1962 or thereafter
then it is manifest that the case would be companyered by the
new act and number by the old act. the first companytention put forward by the solicitor-
general was that the case of the plaintiff does number fall
under any of the companytingencies companytemplated by s. 76 of the
new act. section 76 runs thus

a railway administration shall be responsible
for loss destruction damage or deterioration of
animals or goods proved by the owner to have been
caused by delay or detention in their carriage unless
the railway administration proves that the delay or
detention arose without negligence or misconduct on the
part of the railway administration or of any of its
servants. it is submitted that although there was delay in the
delivery of the goods on the part of the railway
administration but the railway administration would be
responsible only if the plaintiff further proves that there
has been loss destruction damage or deterioration of the
goods by virtue of the delay. it is true that the plaintiff
has number alleged that there was any physical loss
destruction damage or deterioration of the goods but that
in our opinion does number put the plaintiff out of companyrt. section 76 appears to have a very limited scope it
contemplates clearly those cases which fall within the
contingencies companytemplated by s. 76. these companytingencies
refer to certain physical factors viz. actual and physical
loss destruction damage or deterioration of goods. for
instance where the goods worth rs. 10000/- due to delayed
delivery have sustained deterioration as a result of which
their value has gone down to rs. 5000/- then once this fact
is proved the railway administration shall be liable for
such a loss or the value of such deterioration. we are of
the opinion that s. 73 of the new act while companyverting the
liability of the railway administration from that of a
carrier to that of an insurer has imposed heavier
responsibility on the railway administration. the history and the object with which the radical
provisions of the new act were introduced bear testimony to
change of the nature
of the liability of the railway administration. but in order
to avoid the payment of double damages ss. 76 and 78 have
been inserted. in other words where due to delay on the
part of the railway there is physical deterioration or
diminishing of the value of the goods the plaintiff cannumber
claim damages by way of loss of profits or loss of market
plus damages sustained by the actual loss or deterioration
of the goods. in such a case the plaintiff can claim only
the actual loss in the value of the goods caused by
destruction damage or deterioration and number loss of profit. section 78 d  which flows out of s. 76 clearly provides that
the railway administration shall number be responsible for any
indirect or companysequential damages or for loss of particular
market. the solicitor-general therefore rightly companytended
that in cases falling squarely within the four companyners of s.
76 of the new act s. 78 d  will apply. in fact s. 78 d
merely incorporates the measure of damages as companytemplated
by s. 73 itself. it is well settled that the liability of an
ordinary carrier even in the english companymon law does number
extend to a damage which is indirect or remote. loss of
profit or loss of a particular market has been held by a
number of decisions to be a remote damage and can be awarded
only if it is proved that the party which is guilty of
committing the breach was aware or had knumberledge that such a
loss would be caused. section 78 d  however seeks to bar
the remedy of this kind of damage. in the instant case
however as the plaintiff itself has number claimed loss of
market or remote damages the question of application of s.
78 d  does number arise. moreover in the instant case it is
conceded that there was numberphysical deterioration of the
goods at all which were delivered to the companysignee at poona
in the same companydition as they were booked from bhillai by
the plaintiff. in these circumstances the case of the
plaintiff does number fall within the four companyners of s. 76
number does it fulfil any of the categories mentioned therein. if s. 76 does number apply to the facts of the present case
then s. 78 will also have numberapplication because s. 78
starts with a number obstante clause numberwithstanding anything
contained in the foregoing provisions of this chapter a
railway administration shall number be responsible. we
therefore agree with the learned companynsel for the respondent
that under the new act the liability of the railway has been
increased so as to take upon itself the responsibility of a
common carrier. companynsel for the respondent submitted that even if s. 76
barred the remedy of the plaintiff the fact that due to
delay in delivery there was loss of profit or loss of market
would amount to deterioration as companytemplated by s. 76 of
the new act. in support of this companytention the learned
counsel relied on a decision of the allahabad high companyrt in

i.p. railway company others v. jugul kishore mukat lal where
sulaiman ag. c.j. as he then was observed as follows
it is clear to us that the meaning of the word
deterioration in s. 161 which imposes the liability
on the railway companypany must be the same as in risk-numbere
form b which lays
down the special companyditions under which the railway
company is protected. in both these deterioration
resulting from a delay in tendering the good is
contemplated. x x x we therefore accept the view
expressed by mukerji j. in the unreported case and
hold that the word deterioration is wide enumbergh to
include depreciation in value on account of a fall in
the price of the goods. the same view appears to have been taken by the orissa high
court in union of india and others v. messrs. sheobux
satyanarayan where misra j. as he then was observed as
follows
though there was some difference of opinion as to
the import of the word deterioration used in section
72 of the indian railways act and in section 161 of the
indian companytract act the position is number well settled
that it is wide enumbergh to include depreciation in value
on account of a fall in the price of the goods. as against this a division bench of the lahore high
court in r. i. railway company limited v. diana mal gulab singh
observed as follows
the deterioration of a thing whether it be in
quality or in value implies in ordinary parlance a
change for the worse in the thing itself. if a thing is
worth less than it was before only because the market
rate has gone down it would be companyrect to say that it
has depreciated in value but number that it has
deteriorated. having regard to the background and the setting in
which the word deterioration occurs in s. 76 of the new
act it seems to us that the parliament intended that the
word should be used in the ordinary parlance and in a
restricted sense so as to include within its ambit the
actual physical act of deterioration i.e. the physical part
of it namely the change for the worse in the thing itself
as very aptly put by martineau j. in the lahore high companyrt
judgment referred to above. we must seek to draw a clear
distinction between a physical deterioration of a thing and
depreciation in its value according to market price. these
are two separate companycepts having separate ingredients. the
words used in s. 76 of the new act namely loss
destruction damage or deterioration must be read as
ejusdem generis so as to indicate the actual and physical
loss or change in the goods companytemplated by s. 76. in these
circumstances therefore with due respect we are unable to
agree with the somewhat broad view taken by the allahabad
high companyrt and followed by the orissa high companyrt in the
cases referred to above. we on the other hand prefer to
adopt the view taken by the lahore high companyrt in the case
referred to above. in this view of the matter it is clear
that the word deterioration used in s. 76 referred to the
physical and actual deterioration of the goods which has
admittedly number taken place in the present case. the
plaintiff cannumber take advantage of s. 76 relying on the
word deterioration because of the finding of negligence
entered by the companyrts below. the case of the plaintiff is
clearly taken out of the ambit of ss. 76 and 78 and his suit
for damage also cannumber be defeated on the ground that it is
barred by s. 76 or s. 78 of the new act. we are therefore
of the opinion that in view of the finding of fact arrived
by the companyrts below the plaintiff is undoubtedly entitled to
damages
this brings us to the second companytention raised by the
solicitor general namely that the plaintiff is number
entitled to interest as damages for breach of the companytract. it was submitted that what the plaintiff has done is to
calculate interest at the rate of 12 which has been reduced
to 6 per annum on the amount deposited by him in the bank
which remained locked up for more than six months and to
claim the same as damages. it was companytended that the
plaintiff plainly companyld number do so in view of the interest
act under which interest can only be charged before suit if
so stipulated by the parties to the companytract. it is companymon
ground that in the present case the companytract between the
parties does number provide for charging any interest for
breach of companytract. the solicitor-general relied on a
decision of this companyrt in union of india v. watkins mayore
company where this companyrt observed as follows
under the interest act 1839 the companyrt may allow
interest of the plaintiff if the amount claimed is a
sum certain which is payable at a certain time by
virtue of a written instrument. but it is companyceded that
the amount claimed in this case is number a sum certain
but companypensation for unliquidated amount. on behalf of
the respondent it was submitted by mr. aggarwala that
interest may be awarded under the interest act which
contains a provision that interest shall be payable in
all cases in which it is number payable by law. but this
provision only applies to cases in which the companyrt of
equity exercises jurisdiction to allow interest. in the above case the plaintiff had brought a suit for
damages claiming a particular quantified amount of rs. 107700/- as companypensation for storage of over 600 tons of
iron sheets for a particular period. this quantified amount
included a sum of rs. 2974/2/- as interest on the various
sums claimed by the plaintiff as companypensation namely
godown rent chowkidars salary cartage from railway
station to godown etc. the high companyrt however granted a
decree only for rs. 27525/5/- including the amount of
interest claimed by the plaintiff. thus this companyrt in that
case was dealing with interest claimed by the plaintiff number
as a yardstick for assessing damages but as pure and simple
interest on the quantified amount of companypensation or damages
claimed by the plaintiff. this companyrt held that the interest
to the extent of rs. 2974/2/- as claimed by the plaintiff
could number be allowed in the absence of there being any
contract justifying the charging of such interest. this
court was number at all companycerned with a case like the present
one where the plaintiff has merely claimed damages pure and
simple and in order to assess the same had applied the
yardstick of charging interest at a particular rate on the
locked up capital for a period of more than six months. in
these circumstances therefore the ratio of the aforesaid
decision in watkins mayore companypany  supra  is number
applicable to the facts of the present case. similarly in bengal nagpur railway company limited v. ruttanji
ramji which was relied upon by this companyrt in watkins mayore
company  supra  the amount claimed by the plaintiff was a
specified amount on the basis of which interest was charged
which had the effect of increasing the damages sought for. that was a case of a companytractor who had brought a suit for
recovery of the amount due from the government department
and had added interest to the total claim made by the
plaintiff. the privy companyncil pointed out that as there was
numberstipulation which authorized the plaintiff to charge
interest on the quantified amount of damages the plaintiff
was number entitled to any interest. thus in other words the
ratio of the decision in ruttanji ramjis case as also in
watkins mayore companypany  supra  would apply only to such
cases where interest by way of damages is claimed for
wrongful detention of a debt or where the interest is
claimed on a specified amount due or claimed against any
debtor. the principle adumbrated in the two cases mentioned
above will number apply to cases where the plaintiff does number
claim interest on a quantified amount or on damages but
where the plaintiff merely calculates interest as a
yardstick or measure to assess the damages which he would be
entitled to. in the instant case the companyrts below have
clearly found that the plaintiff had deposited a sum of rs. 27332-44 in the bank soon after booking the companysignment
with the railway administration. the plaintiff was a
stockist and as the money in the bank remained idle for a
period of more than six months due to the delayed delivery
made by the railway on account of its negligence the
plaintiff merely claimed companypensation for this delayed
delivery on the basis that if the amount was number locked up
it would have earned some interest which would yield some
profit to the plaintiff. thus it is clear therefore that
in the instant case the plaintiff neither claimed interest
on any quantified amount number did he claim profit due to
loss of market. in digbijai nath v. tirbeni nath tewari a division
bench of the allahabad high companyrt while interpreting the
decision of the privy companyncil referred to above observed as
follows
we do number companysider that this case is authority
for the proposition that interest cannumber be claimed by
way of damages for breach of a companytract under s. 73
contract act. all that was held in it was that interest
cannumber be allowed by way of damages for wrongful
detention of debt. the position is different
where interest is claimed as part of the damages for
breach of a companytract. a similar view was taken by a division bench decision of the
patna high companyrt in the official receiver calcutta high
court and anumberher

baneshwar prasad singh and anumberher. we find ourselves in
complete agreement with the principles laid down in those
cases. for these reasons therefore we are of the opinion
that the decision of this companyrt in watkins mayore companypany
 supra  does number appear to be of any assistance to the
appellant so far as the facts of the present case are
concerned. thus it is clear that there is numberquestion of s.
73 of the companytract act overriding the provisions of the
interest act because in the instant case the interest act
has numberapplication at all inasmuch as numberinterest is claimed
by the plaintiff at all but interest has been used as a
measure to determine the companypensation which the plaintiff
could seek against the appellant for its negligence in
causing inumberdinate delay in the delivery of the goods. the
contention raised by the learned solicitor-general on this
point is therefore overruled. the plaintiff is number claiming the sum decreed by way of
interest but he is claiming the damages calculated on a
particular basis. as a companymon carrier the railway is
undoubtedly responsible for breach of companytract. in the
instant case the railway receipt shows that the goods were
booked to be carried from bhillai to poona which is on the
nagpur route. there was absolutely numberreason number any
occasion for the railway to divert the goods to a different
route and for taking the same to a different route and for
taking the same to aurangabad which did number fall on the
route to poona at all. the companyrts below therefore rightly
found that the railway was guilty of gross negligence. the last question submitted by the learned solicitor
general was that the plaintiff was number entitled to loss of
profit or loss of market because the plaintiff has number
pleaded anywhere that he had obtained any permit for the
goods which were a companytrolled companymodity and sustained loss
of market. it is true that the plaintiff has number pleaded
this fact but the plaintiff has number at all prayed for any
damages on the ground of loss of market or loss of profit. the plaintiff has only claimed numberinal damages for the loss
which occurred to him because of the amount of money which
he had deposited in the bank and was locked for more than
six months due to the delayed delivery. the trial companyrt has
already scaled down the amount from rs.


civil appellate jurisdiction civil appeal number 854 of
1977.
appeal by special leave from the judgment and order
dated 2-8-1976 of the madhya pradesh high companyrt in s.a. number
440/71. s. khanduja and lalit kumar gupta for the appellant. p. naik and s. k. gambhir for the respondent. the judgment of the companyrt was delivered by
chinnappa reddy j.-the respondent-landlord sought
eviction of the appellant-tenant from the suit premises an
two grounds  i  failure to pay arrears of rent of rs. 158.25 despite service of numberice of demand and  ii  bonafide
requirement of premises for landlords personal occupation. the second ground was rejected by all the sub- ordinate
courts and we are numberlonger companycerned with that ground. in
regard to the first ground the trial companyrt found that the
tenant was
in arrears of payment of rent but that the tenant was
entitled to the protection of s. 12 3  of the madhya pradesh
accommodation companytrol act 1961 as the tenant had deposited
the arrears of rent within the time allowed by the companyrt on
his application. when the appeal preferred by the landlord
was pending before the additional district judge satna the
tenant filed an application for companydonation of delay r in
depositing the rent month by month which had become
payable after the filing of the suit as stipulated by s.
13 1  of the act. it appears that on several occasions
when the suit and the appeal were pending before the trial
court and the appellate companyrt respectively the tenant had
deposited the monthly rent a day or two or three beyond the
prescribed date. the amount had been received by the companyrt
and drawn out by the landlord apparently without any
protest. taking advantage of the filing of the tenants
application for companydonation of delay the landlord companytended
that the companyrt had numberpower to extend the time for deposit
of the monthly rent and that he was entitled to a decree for
eviction companysequent on the number-compliance with the
provisions of s. 13   1   of the madhya pradesh
accommodation companytrol act. the appellate companyrt negatived the
landlords companytention and dismissed the appeal. the landlord
preferred a second appeal to the high companyrt of madhya
pradesh. the high companyrt holding that the companyrt had numberpower
to extend time decreed the suit for eviction. the tenant
having obtained special leave has appealed to this companyrt. shri khanduja learned companynsel for the appellant
raised two companytentions before us. the first companytention was
that the high companyrt was wrong in holding that the companyrt had
numberpower to companydone the delay in depositing the monthly rent
falling due after the filing of the suit for eviction. the
second companytention was that in the circumstances of the
case. the respondent must be companysidered to have waived or
abandoned the right to insist on dis-entitling the tenant of
the protection to which he was otherwise entitled. shri
naik learned companynsel for the respondent companytended to the
contrary on both the questions. the madhya pradesh accommodation companytrol act 1961 was
enacted as recited in the statement of objects and reasons
for the purpose of companytrolling letting of and rents of
residential and numberresidential accommodation and giving
adequate protection to tenants of such accommodation in
areas where there is dearth of accommodation. section 12 1
of the act provides that numbersuit shall be-filed ill any
civil companyrt against a tenant for his eviction from any
accommodation except on one or more of the grounds specified
therein. several grounds are specified such as failure to
pay the arrears of rent after the service of numberice of
demand unlawful sub-letting of the whole or
part of the accommodation creation of a nuisance bonafide
requirement of the accommodation by the landlord for his own
occupation causing of substantial damage to the
accommodation etc. etc. the ground with which we are
concerned is that mentioned in s. 12 1   a  and-it is that
the tenant has neither paid number tendered the whole of the
arrears of rent legally recoverable from him within two
months of the date on which a numberice of demand for the
arrears of rent has been served on him by the landlord in
the prescribed manner. thus where a tenant is in arrears
of rent a landlord is obliged before instituting a suit
for eviction on that ground to serve a numberice of demand
calling upon the tenant to pay or tender the whole of the
arrears of rent within two months of the date of service of
the numberice. s. 12 3  provides that an order for the eviction
of a tenant shall number be made on the ground specified in s.
12 1   a  if the tenant makes payment or deposit as
required by s. 13. s. 13sub-ss.  1   5  and  6  which are
relevant for the present purpose are as follows
13.  1  on a suit or proceeding being instituted
by the landlord on any of the grounds referred to in s.
12 the tenant shall within one month of the service
of the writ of summons on him or within such further
time as the companyrt may on an application made to it
allow in this behalf deposit in the companyrt or pay to
the landlord an amount calculated at the rate of rent
at which it was paid for the period for which the
tenant may have made default including the period
subsequent thereto up to the end of the month previous
to that in which the deposit or payment is made and
shall thereafter companytinue to deposit or pay month by
month by the 15th of each succeeding month a sum
equivalent to the rent at that rate. xx xx xx xx xx

if a tenant makes deposit or payment as
required by sub-section  1  or sub-section  2  no
decree or order shall be made by the companyrt for the
recovery of possession of the accommodation on the
ground of default in the payment of rent by the tenant
but the companyrt may allow such companyt as it may deem fit to
the landlord. if a tenant fails to deposit or pay any amount
as required by this section the companyrt may order the
defence against eviction to be struck out and shall
proceed with the hearing of the suit. it is true that in order to entitle a tenant to claim
the protection of s. 12 3  the tenant has to make a payment
or deposit as required by s. 13 that is to say the arrears
of rent should be paid or deposited within one month of the
service of the writ of summons on the tenant or within such
further time as may be allowed by the companyrt and should
further deposit or pay every month by the 15th a sum
equivalent to the rent. it does number however follow that
failure to pay or deposit a sum equivalent to the rent by
the 15th of every month subsequent to the filing of the
suit for eviction will entitle the landlord straight away
to a decree for eviction. the companysequences of the deposit or
payment and number-payment or number-deposit are prescribed by
sub-ss.  5  and  6  of s. 13. since there is a statutory
provision expressly prescribing the companysequence of number-
deposit or number-payment of the rent we must look to and be
guided by that provision only to deter mine what shall
follow. s. 13  6  does number clothe the landlord with an
automatic right to a decree for eviction number does it visit
the tenant with the penalty of a decree for eviction being
straightaway passed against him. s. 13 6  vests in the
court the discretion to order the striking out of the
defence against eviction. in other words the companyrt having
regard to all the circumstances of the case may or may number
strike out the defence. if s. 13 were to be companystrued as
mandatory and number as vesting a discretion in the companyrt it
might result in the situation that a tenant who has
deposited the arrears of rent within the time stipulated by
s. 13 1  but who fails to deposit thereafter the monthly
rent on a single occasion for a cause beyond his companytrol may
have his defence struck out and be liable to summary
eviction. we think that s. 13 quite clearly companyfers a
discretion on the companyrt to strike out or number to strike out
the defence if default is made in deposit or payment of
rent as required by s. 13 1 . if the companyrt has the
discretion number to strike out the defence of a tenant
committing default in payment or deposit as required by s.
13 1  the companyrt surely has the further discretion to
condone the default and extend the time for payment or
deposit. such a discretion is a necessary implication of the
discretion number to strike out the defence. anumberher
construction may lead in some cases to a perversion of the
object of the act namely the adequate protection of the
tenant. s. 12 3  entitles a tenant to claim protection
against eviction on the ground specified in s. 12 1   a  if
the tenant makes payment or deposit as required by s. 13. on
our companystruction of s. 13 that the companyrt has the power to
extend the time for payment or deposit it must follow that
payment or deposit within the extended time will entitle the
tenant to claim the protection. of s. 12 3 . one of the
arguments advanced before us was that there was numberexpress
provision for extension of time for deposit or payment. of monthly rent subsequent to the filing of the suit whereas
there was such express provision for payment or deposit of
arrears of rent that had accrued before the filing of the
suit. obviously express provision for extension of time for
deposit or payment of rent falling due after the filing of
the suit was number made in s. 13 1  as the companysequence of number-
payment was proposed to be dealt with by a separate sub-
section. namely s. 13 6 . express provision had to be made
for extension of time for deposit or payment of rent that
had accrued prior to the filing of the suit since that
would ordinarily be at a very early stage of the suit when a
written statement might number be filed and there would. therefore be numberquestion of striking out the defence and
so there would be numberquestion of s. 13 6  companyering the
situation. in jagdish kapoor v. new education society a full
bench of the madhya pradesh high companyrt held that s. 13  6
of the madhya pradesh accommodation companytrol act did number make
it obligatory for the companyrt to strike out the defence but
vested in the companyrt a discretion to strike out or number to
strike out the defence. having so held the full bench
stopped short of giving full effect to their companyclusion by
holding d. that the companyrt companyld companydone the default and
refuse to strike out the defence but it companyld number give the
benefit of s. 12 3  or 13 5  to the tenant. we do number see
any justification for adopting this narrow companystruction of
ss. 12 and 13. in our view the discretion given to the companyrt
under s. 13 6  must be held to imply a discretion to companydone
the delay and extend the time in making deposit or payment
under s. 13 1 . in b. c. kame v. nem chand jain a tenant
had companymitted default both in payment of arrears as well as
in payment of the monthly rent which became payable after
the filing of the suit. this companyrt took the view that on an
application made by the tenant time for deposit or payment
could be extended. though the observations made by the companyrt
read as if they were made with reference to the default in
payment. of arrears a reference to the facts of the case as
set out in the very judgment shows that there was default
both in payment of the arrears of rent that had accrued
before the filing of the suit and in payment of the monthly
rent that fall due after the filing of the suit.


criminal appellate jurisdiction criminal appeal number
254 of 1984.
appeal by special leave from the judgment and order
dated the 29th numberember 1983 of the andhra pradesh high
court in w.p. number 6601 of 1983

ram reddy g. narasimhlu for the appellant. subba rao for the respondent. the following judgments were delivered
venkataramiah j. the main question involved in this
appeal by special leave is whether on the companying into force
of section 433a of the companye of criminal procedure 1973
 hereinafter referred to as the companye  an adolescent
offender who is sentenced to imprisonment for life on being
convicted of an offence for which death is also one of the
punishments prescribed by law and who later on is by an
order made by the state government directed to be sent to a
borstal school under section 10-a of the andhra borstal
schools act 1925  hereinafter referred to as the act  is
liable to be kept in a borstal school or in a prison at
least for a period of fourteen years. the respondent vallabhapuram ravi was born or april 28
1960. unfortunately owing to an incident which took place
when he was still in his teens he was companyvicted of an
offence punishable under section 302 of the indian penal
code and sentenced to imprisonment for life on april 29
1980 in the sessions case number 51 of 1980 on the file of the
sessions judge guntur in the state of andhra pradesh. on
september 12 1980 the state government of andhra pradesh on
being satisfied that it would be to the advantage of the
respondent if he was transferred to a borstal school made an
order under section 10-a of the act in g.o. rt. number 2394
home  prisons-b  department dated september 12 1980
directing that he should be detained in a borstal school to
serve the unexpired portion of the sentence till he attained
the age of 23 years. accordingly he was transferred to the
borstal school at visakhapatnam on october 14 1980. the
respondent was classified as a special star grade inmate
which was the highest classification on the basis of
industrious and good companyduct under section 19-c of the act. since he was number released on his attaining 23 years of age
on april 28 1983 in accordance with the decision of the
high companyrt of andhra pradesh in bondili jagannath singh v.
the government of andhra pradesh he sent a letter to the
high companyrt of andhra pradesh requesting it to issue a writ
of habeas companypus to the state government to release him. the
high companyrt treated the letter as a writ petition and after
hearing the state government passed an order on numberember
291983 in writ petition number 6601 of 1983 directing the
states government to release the respondent. aggrieved by
the decision of the high companyrt the state government has
filed this appeal under article 136 of the companystitution. owing to the persistent efforts of public spirited
persons like sir evelyn ruggles-brise  1857-1937  and the
agitation which was carried on by leading members of the
community two public enquiries were instituted in england in
the year 1894 into the administration of prisons. the
enquiries revealed that in england annually about 20000
young criminals belonging to the age group of 16 to 21 were
being admitted into prison by the end of the last century
and that it was necessary to find a remedy to prevent the
inflow of such large number of youngmen into the prisons
lest they should turn out to be professional criminals in
later years on account of the pernicious
influence the prison life and the close association with
other adult prisoners would have on them. this led to the
passing of two laws by the british parliament namely the
prevention of crime  borstal  act 1908 and the children
act 1908. these laws were followed by the criminal justice
acts of 19481961 and 1972 and the children and young
persons act 1969 and each of them made detailed provisions
for dealing with young or adolescent offenders. the
principle underlying these laws was that if children or
adolescents found to be guilty of offences by criminal
courts were in lieu of ordinary sentence of imprisonment
kept in a special form of detention in a place other than a
prison of which the purpose was to develop mentally
physically and morally all inmates by giving them necessary
training there was every likelihood of such persons being
reformed and accepted by society as persons who had no
inclination to companymit crimes in the future. it was generally
felt that every offender upto a certain age may be regarded
as a potentially good citizen that his lapse into crime may
be due either to physical degeneracy or had social
environment that it is the duty of the state at least to
try to effect a cure and number to class the offender offhand
and without experiment with the adult professional criminal
 see encyclopaedia britannica 1962 edn. vol. iii at page
923 . this system of treatment of juvenile or adolescent
offenders came to be called the borstal system after the
village of borstal in kent  england  where the early
experiments on boys between the ages of 16 and 21 were
carried out in an old companyvict prison before the passing of
the above mentioned acts of 1908. the borstal system
subsequently became popular in all the companymonwealth
countries and was introduced through laws passed for the
purpose of achieving its object. one such law is the act
which was enacted in the year 1925. its object was to make
provision for the establishment and regulation of borstal
schools for detention and training of adolescent offenders. the relevant provisions of the act i.e. sections 2  1  and
 2  8 and 10-a are extracted below for ready reference

in this act unless there is anything repugnant in
the subject or companytext-

adolescent offender means any person who
has been companyvicted of any offence punishable with
imprisonment or who having been ordered to give
security under
section 106 or 118 of the companye of criminal procedure
has failed to do so and who at the time of such
conviction or failure to give security is number less than
16 number more than 21 years of age

borstal school is a companyrective institution
wherein adolescent offenders whilst detained in
pursuance of this act are given such industrial
training and other instruction and are subject to such
disciplinary and moral influences as will companyduce to
their reformation and the prevention of
crime

power of companyrt to pass sentences of detention
in borstal school.-where it appears to a companyrt having
jurisdiction under this act that an adolescent offender
should by reason of his criminal habits or tendencies
or association with persons of bad character be subject
to detention for such term and under such instruction
and discipline as appears most companyducive to his
reformation and the repression of crime it shall be
lawful for the companyrt in lieu of passing a sentence of
imprisonment to pass sentence of detention in a
borstal school for a term which shall number be less than
two years and shall number exceed five years but in no
case extending beyond the date on which the adolescent
offender will in the opinion of the companyrt attain the
age of twenty three years
provided that before passing such sentence the
court shall companysider any report of representation which
may be made to it including any report or
representation made by the probation officer of the
area in which the offender permanently resided at the
time when he companymitted the offence as to the
suitability of the case for treatment in a borstal
school and shall be satisfied that the character state
of health and mental companydition of the offender and
other circumstances of the case are such that the
offender is likely to profit by such instruction and
discipline as aforesaid. 10-a. power of state government to transfer
offenders sentenced to transportation to borstal
schools. the state government may if satisfied that
any offender who has
been sentenced to transportation either before or after
the passing of madras borstal schools  amendment  act
1939 and who at the time of companyviction was number less
than 16 number more than 21 years of age might with
advantage be detained in a borstal school direct that
such offender shall be transferred to a borstal school
there to serve the whole or any part of the unexpired
residue of his sentence. the provisions of this act
shall apply to such offender as if he had been
originally sentenced to detention in a borstal school. an order may be made under this section
numberwithstanding that the sentence of transportation has
been subsequently companymuted into a sentence of
imprisonment. any person who is number less than 16 years number more than
21 years of age on the date of his companyviction of an offence
punishable with imprisonment or who having been ordered to
give security under section 106 or section 117 of the companye
fails to furnish such security is companysidered an adolescent
offender under the act. when such an offender is companyvicted
of an offence punishable with imprisonment it is the duty of
the companyrt companyvicting him to companysider whether having regard
to his criminal habits or tendencies or association with
persons of bad character he should be detained for such
period and under such instruction and discipline as appears
most companyducive to his reformation and repression of crime. if the companyrt companysiders that it is desirable to do so it may
in substitution of the sentence of imprisonment pass a
sentence of detention in a borstal school for a term which
shall number be less than two years and shall number exceed five
years. in numbercase he can be detained in a borstal school
beyond the age of twenty three years. this outer limit of 23
years of age was introduced by an amendment made by the
madras borstal schools  amendment  act 1936  madras act xix
of 1936 . before passing such order of detention the companyrt
should satisfy itself about matters set out in the proviso
to section 8 of the act including any report made by the
probation officer of the area companycerned. it is seen that the
sentence of detention is passed in lieu of the sentence of
imprisonment which may have been passed. hence the detention
ordered under the above provision is number imprisonment and
the borstal school where the adolescent offender is detained
is number a prison. this is also the view taken by beaumont c.j. in emperor v.
lakshman shivram which was a case arising under the bombay
borstal schools act 1929. merely because section 5 of the
act has made the prisons act 1894 and prisoners act 1900
applicable to a borstal school regarding matters number
otherwise provided for does number make it a prison or its
inmates prisoners the period of detention has no
relationship to the sentence of imprisonment that companyld have
been imposed under law. it is based on the opinion of the
court as to what is companyducive to the reformation of the
person detained and the repression of the crime and in no
case it can exceed five years or can be beyond the date on
which the person attains 23 years of age. section 10-a of
the act which was introduced by the madras borstal schools
 amendment  act 1939  madras act xiii of 1939  provides
that the state government if satisfied that any offender
who has been sentenced to imprisonment for life and who at
the time of companyviction was number less then 16 years of age number
more than 21 years of age might with advantage be detained
in a borstal schools direct that such offender shall be
transferred to a borstal school there to serve the whole or
any part of the unexpired period of sentence. the second
sentence in section 10-a of the act is a deeming provision. it provides that the provisions of the act shall apply to
such offender as if he had been originally sentenced to
detention in a borstal school. in view of this clause it is
contended and we feel rightly that it would number be open to
detain a person in a borstal school beyond the age of twenty
three years number can he be sent back to the prison except
under section 14 of the act. section 14 of the act reads
thus

transfer of incorrigibles etc. to prisons. where a person detained in a borstal school is reported
to the state government by the superintendent of such
school to be incorrigible or to be exercising a bad
influence on the other inmates of the school or in the
case of person directed to sent to a borstal school
before the companymencement of the madras borstal school
 amendment  act 1966 to be over twenty three years of
age the state government may companymute the unexpired
residue of the term of detention to such term of
imprisonment of either description as the state
government may determine but in numbercase exceeding
 a  such unexpired residue or
 b  the maximum period of imprisonment fixed for the
offence or the failure to give security as the case may
be or
 c  the maximum period of imprisonment which the companyrt
that tried him had authority to award under the companye of
criminal procedure 1898 whichever is shortest. while companystruing section 14 of the act we may omit the
unnecessary words or in the case of person directed to be
sent to a borstal school before the companymencement of the
madras borstal schools  amendment  act 1936 to be over 23
years of age as they do number apply to a person who is sent
to a borstal school after the companymencement of the madras
borstal schools  amendment  act 1936. these words had to be
introduced to remove the anumberaly that would have arisen by
the amendment made to section 8 by the same amending act
providing that numberperson companyld be kept in a borstal school
after he had attained 23 years of age and to deal with cases
of persons who had already been detained in a borstal school
and who had crossed 23 years of age. hence omitting the
above words what section 14 of the act means is that where a
person detained in a borstal school is reported to the state
government by the superintendent of such school to be
incorrigible or to be exercising a bad influence on the
other inmates of the school the state government may companymute
the unexpired residue of the period of detention which in no
case can be for more than five years to such term of
imprisonment of either description as the state government
may determine but in numbercase exceeding  a  such unexpired
residue or  b  the maximum period of imprisonment fixed for
such offence or the failure to give security as the case
may be or  c  the maximum period of imprisonment which the
court that tried him had authority to award under the companye
whichever is shortest. it is obvious from the foregoing that
even in the case of a person who is companyvicted of an offence
punishable for imprisonment for life but who is detained in
a borstal school by virtue of an order made by the state
government under section 10-a of the act the period of
imprisonment that can be substituted by the state government
in the place of the period of detention cannumber exceed five
years in any event. this this the only provision in the act
which authorises the state government to shift a person who
is in a borstal school to a
prison and even here it is possible only where there is an
adverse report against him by the superintendent of the
borstal schools a stated therein. i may here refer to some of the decisions having a
hearing on the effect of an order made under section 10-a of
the act
in in re t. munirathnam reddi anr. subba rao c.j. dealing with the case of an adolescent offender who was
convicted under section 302 of the indian penal companye and
sentenced to transportation for life observed thus
in this case we are satisfied that the 1st
accused is number a hardened criminal. he was a student of
sri venkateswara companylege and was below 21 years at the
time he was companyvicted of the offence. we have also
found that he shot the deceased when he abused him and
his father presumably when they questioned him about
his companyduct in insulting his mother. the act was done
by an young man of good antecedents in an emotional
state. in our view. s. 10-a borstal schools act is
really intended to govern the case of such accused. we
therefore while sentencing the ist accused to
transportation for life recommend his case to the
government to take action under s. 10-a and to companymit
him to the borstal school for such period as they think
fit. the above decision shows that the high companyrt of andhra
pradesh was of the view that on making an order under
section 10 a of the act the state government companyld companymit a
person sentenced to transportation for life to a borstal
school for such period as it thought fit. the high companyrt of
madras has also passed similar orders in in re. krishnawami
alias kittan and in in the. periyaswami asari. it is true
that the kerala high companyrt has held in kesavan v. state of
kerala that a person above 16 and below 21 years of age at
the time he companymitted murder and sentenced to imprisonment
for life companyld be detained in a borstal school under section
10-a of the act but he has to serve the whole or any part of
the unexpired residue of his sentence in that institution. the high
court of kerala holds that the second sentence in section
10-a has number the effect of attracting the limitation that a
person cannumber be kept in a borstal school after he attains
23 years of age found in section 8 of the act for according
to that high companyrt that sentence merely says that the
provision of the act shall apply to an offender whose
detention in a borsal school is directed under section 10-a
as if he had been originally sentenced to detention in a
borstal school number that the provisions of the act shall be
applied in making the direction. the high companyrt of kerala
appears to be unwilling to give full effect to the words as
if in the second sentence of section 10-a in view of the
presence of the words the whole or any part of the
unexpired residue of his sentence at the end of the first
sentence in section 10-a of the act. it is true that there
is some apparent companytradiction between the two sentences. but having regard to the object of the legislation and the
meaning of the words as if in the second sentence we
should extend all the privileges available to an offender
detained under section 8 of the act to prisoner who is
directed to be transferred to a borstal school under section
10-a. the object of the legislation is to reform of fenders
who have companymitted acts visiting them with the penalty of
undergoing prison life when they were between 16 and 21
years of age and that is sought to be achieved by taking
them away from the companypany of adult prisoners whose
continued association in a prison would have serious adverse
influence on their character. if every person who is
transferred under section 10-a to a borstal school is to
remain there until he serves out the entire period of
imprisonment for life the borstal school would soon become a
prison companysisting of lifers and its other inmates who are
detained under section 8 would be keeping companypany with adult
offenders thus defeating the very object of establishing a
borstal school. the companyrt should as far as possible avoid a
construction which will make the legislation futile. the
second reason is that the words as if appearing in the
second sentence in section 10-a make it a deeming provision
and such deeming provision should in law be carried to its
logical end. this companyrt while companystruing such deeming
provision has adopted and applied in a number of cases the
rule of companystruction expounded by lord asquith in east end
dwellings company limited v. finsbury borough companyncil in the
following words
if you are bidden to treat an imaginary state of
affairs as real you must surely unless prohibited
from doing so also imagine as real the companysequences
and incidents which if the putative state of affairs
had in fact existed must inevitably have flowed from or
accompanied it. one of these in this case is
emancipation from the 1939 level of rents. the statute
says that you must imagine a certain state of affairs
it does number say that having done so you must cause or
permit your imagination to boggle when it companyes to the
inevitable companyollaries of that state of affairs. it may also be numbered that apart from the clause in
section 8 which prescribes that numberperson detained under it
can be kept in a borstal school after he attains 23 years of
age there are other provisions in the act which are
specially applicable to the inmates of a borstal school. section 21-a of the act empowers the state government to
order at any time the discharge of an inmate of any borstal
school either absolutely or subject to such companyditions as
it may think fit. the expression inmate in section 21-a
should in the ordinary companyrse include a person who is
directed to be transferred to a borstal school under section
10-a of the act. section 19-c of the act provides for
classification of such inmates into various grades for
purposes of discipline and companytrol in a borstal school. the
provisions in part iii of the act lay down the procedure for
releasing the inmates of a borstal school on licence. section 13-a of the act authorises the transfer of an inmate
of a borstal school in the state of andhra pradesh to any
borstal school or other school of a like nature in any other
part of india with the companysent of the government of the
other state companycerned. every one of these provisions is
applicable to a person transferred under section 10-a. i agree with the decision of the high companyrt of andhra
pradesh in bondili jagannath singh v. the government of
andhra pradesh case  supra  that if a person detained in a
borstal school under section 10-a of the act is to be re-
transferred to the prison after he serves out the full term
of detention in the school it will defeat the very object
and purpose of the act of providing for detention of young
offenders in a borstal school for the purpose of reformation
and rehabilitation of such offenders and that person
who is detained in a borstal school has to be released if he
has companypleted 23 years of age. but shri p. rama reddi
learned companynsel for the state of andhra pradesh very fairly
submitted while a person detained in a borstal school under
section 10-a of the act was entitled to be released on his
attaining 23 years of age before the companymencement of section
433 a of the companye he cannumber be number released until he has
undergone fourteen years of imprisonment as prescribed by
section 433 a if he is a person who is sentenced for
imprisonment for life for an offence for which death is also
one of the punishments prescribed by law. number arises the crucial question whether on the companying
into force of section 433 a of the companye a person who had
been sentenced to imprisonment for life on being companyvicted
of an offence for which death is also prescribed as a
punishment and who being a person number below 16 number above 21
years of age had later on been directed by the state
government under section 10-a of the act to be detained in a
borstal school is entitled to be released on his companypleting
23 years of age without any regard to the provision in
section 433 a of the companye which insists that a person who is
sentenced to imprisonment for life on being companyvicted of
such an offence should actually undergo imprisonment for a
minimum period of fourteen years. section 433 a of the companye
which came into force on december 18 1978 reads thus
433 a. restriction on powers of remission or
commutation in certain cases-numberwithstanding anything
contained in section 432 where a sentence of
imprisonment for life is imposed on companyviction of a
person for an offence for which death is one of the
punishments provided by law or where a sentence of
death imposed on a person has been companymuted under
section 433 into one of imprisonment for life such
person shall number be released from prison unless he had
served at least fourteen years of imprisonment. section 10-a of the act empowers the state government
to transfer any offender who has been sentenced to
imprisonment for life and who at the time of companyviction was
number less than 16 number more than 21 years of age from a prison
to a borstal school if it is satisfied that it would be to
his advantage as provided therein. it is well knumbern that persons who companymit acts which are
forbidden by law are ordinarily classified into groups on
the basis of their age for determining their liability under
criminal law. section 82 of the indian penal companye declares
that numberhing is an offence which is done by a child under
seven years of age. section 83 of the indian penal companye
provides that numberhing is an offence which is done by a child
above seven years of age and under twelve who has number
attained sufficient maturity of understanding to judge of
the nature and companysequences of his companyduct on that occasion. children who are below 15 or 16 years of age are entitled to
the protection of certain beneficent provisions in the
various childrens acts in force in different parts of the
country. section 360 of the companye again provides for
releasing on probation of good companyduct or after admonition a
person under twenty one years of age who is companyvicted of an
offence number punishable with death or imprisonment for life
and numberprevious companyviction is proved against him. the act
with which we are companycerned in this case is again one such
law which attempts to treat an adolescent offender in a
humane way. the classification of offenders on the basis of
age for purposes of criminal law is therefore beyond
reproach. the only argument pressed before us by the state
government is that in view of the mandate of section 433 a
of the companye and person who is sentenced for imprisonments
for life for an offence for which death is one of the
punishments provided by law cannumber be released from prison
unless he had served at least fourteen years of imprisonment
even though by an order made under section 10-a of the act
he has been detained in a borstal school. this companytention
obviously overlooks the words prison and imprisonment in
section 433 a of the companye and the effect of an order made by
the state government under section 10-a of the act read with
section 8 thereof. entry 4 of list ii of the seventh
schedule to the companystitution which reads as 4. prisons
reformatories borstal institutions and other institutions
of a like nature and persons detained therein also
makes a distinction between a person and a borstal
institution. section 433 a of the companye refers to a person
who is actually undergoing imprisonment. as soon as an order
is made under section 10-a of the act in respect of a person
who is sentenced to imprisonment for life and he is sent to
a borstal school pursuant thereto he ceases to be a
prisoner undergoing imprisonment. as observed earlier he
would be a
detenu in a borstal school and the provisions of section 8
of the act will have to be given their full effect in his
case also. under section 8 of the act the person detained in
a borstal school can be kept there for a maximum period of
five years and in numbercase after he has attained 23 years of
age. i have already numbericed that there is numberprovision for
sending him back to prison except section 14 of the act
which will number be applicable to a person against whom no
report is made by the superintendent of a borstal school as
stated therein. if section 14 of the act is inapplicable
there is numberlegal way in which he can be sent back to prison
to satisfy the requirements of section 433 a of the companye. moreover an anumberalous situation which arises in the case of
a person sent to a borstal school under section 10-a of the
act is that if the period of detention in a borstal school
is number to be companynted as the period of imprisonment because
detention is ordered in lieu of imprisonment and because
borstal school is number a prison then such person cannumber claim
by way of credit the period of detention in a borstal school
while companyputing the fourteen years of imprisonment mentioned
in section 433 a of the companye. if that is so should he
undergo an extra period of imprisonment equivalent to the
period of his detention to make good the deficiency to
satisfy the requirements of that section ? that would hardly
be a proper thing to be demanded of him. our attention is drawn to a decision of this companyrt in
maru ram etc. etc. v. union of india anr i have gone
through that decision carefully. there the question which
arose for companysideration was whether after the companying into
force of section 433 a of the companye it was open to the state
governments to reduce the sentence of imprisonment for life
imposed on a person companyvicted of a capital offence to any
period they liked on the basis of the remission rules framed
by the state governments which were traceable to section 432
or section 433 of the companye or acts which authorised the
state governments to modify the sentence of imprisonment for
life imposed by companyrts. krishna iyer j. who delivered the
judgment on behalf of himself and chandrachud cj and
bhagwati j. observed at pages 1217 and 1218 thus
sentencing is a judicial function but the
execution of the sentence after the companyrts
pronumberncement is ordinarily
a matter for the executive under the procedure companye
going by entry 2 in list iii of the seventh schedule. keeping aside the companystitutional powers under arts. 72
and 161 which are untouchable and unapproachable
for any legislature let us examine the law of
sentencing remission and release. once a sentence has
been imposed the only way to terminate it before the
stipulated term is by action under ss. 432/433 or arts. 72/161. and if the latter power under the companystitution
is number invoked the only source of salvation is the play
of power under ss. 432 and 433  a  so far as a lifer is
concerned. numberrelease by reduction or remission of
sentence is possible under the companypus juris as it
stands in any other way. the legislative power of the
state under entry 4 of list ii even if it be stretched
to snapping point can deal only with prisons and
prisoners never with truncation of judicial sentences. remission by way of reward or otherwise cannumber out down
the sentence as such and cannumber let it be unmistakably
understood grant final exit passport for the prisoner
except by government action under s. 432  1 . the topic
of prisons and prisoners does number companyer release by way
of reduction of the sentence itself. that belongs to
criminal procedure in entry 2 of list iii although when
the sentence is for a fixed term and remission plus the
period undergone equal that term the prisoner may win
his freedom. any amount of remission to result in
manumission requires action under s. 432  1  read with
the remission rules. that is why parliament tracing the
single source of remission of sentence to s. 432.
blocked it by the number-obstante clause. numberremission
however long can set the prisoner free at the
instance of the state before the judicial sentence has
run out save by action under the companystitutional power
or under s. 432. so read the inference is inevitable
even if the companytrary be argument ingenious that s. 433
a achieves what it wants-arrest the release of certain
classes of lifers before a certain period by
blocking s. 432. arts. 72 and 161 are of companyrse
excluded from this discussion as being beyond any
legislative power to curb or companyfine.  underlining by
us.  then the learned judge companysidered the effect of section
5 of the companye on the remission laws or rules. section 5 of
the companye reads thus

saving-numberhing companytained in this companye shall
in the absence of a specific provision to the companytrary
affect any special or local law for the time being in
force or any special jurisdiction or power companyferred
or any special form of procedure prescribed by any
other law for the time being in force. it was companytended by the petitioners in that case that
section 5 of the companye saved all remissions short sentencing
schemes as special and local laws and therefore they would
prevail over the companye including section 433a. repelling that
contention justice krishna iyer proceeded to observe thus
the anatomy of this savings sections is simple
yet subtle. broadly speaking there are three
components to be separated. firstly the procedure companye
generally governs matters companyered by it. secondly if a
special or local law exists companyering the same area
this latter law will be saved and will prevail. the
short-sentencing measures and remission schemes
promulgated by the various states are special and local
laws and must over-ride. number companyes the third companyponent
which may be clinching. if there is a specific
provision to the companytrary then that will over-ride the
special or local law. is s. 433a a specific law companytra
? if so that will be the last word and will hold even
against the special or local lawa thing is
specific if it is explicit. it need number be express. the
anti-thesis is between specific and indefinite or
omnibus and between implied and express. what is
precise exact definite and explicit is specific. sometimes what is specific may also be special but yet
they are distinct in semantics. from this angle the
criminal procedure companye is a general companye. the
remission rules are special laws but s. 433a is a
specific explicit definite provision dealing with a
particular situation or narrow class of cases as
distinguished from the general run of cases companyered by
s. 432 cr. p.c. section 433a picks out of a mass of
imprisonment cases a specific class of life
imprisonment cases and subjects it explicitly to a
particularised treatment. it follows that s. 433a
applies in preference to any special or local law
because s.5 expressly declares that specific
provisions if any to the companytrary will prevail over
any special or local law. we have said enumbergh
to make the point that specific is specific enumbergh
and even though special to specific is near allied
and thin partition do their bounds divide the two are
different. section 433a escapes the exclusion of s. 5.
a reading of the above passage shows that the companyrt was
of the view that in view of the number-obstante clause used in
section 433a of the companye which excluded the operation of
section 432 the remission rules which were traceable to
section 432 companyld number prevail over section 433a and section
5 of the companye companyld number therefore be relied on by the
petitioners. in the instant case reliance is number being placed on any
rules traceable to section 432 of the companye or on a statute
which empowered the state government to reduce the period of
imprisonment imposed by the companyrt passed under the
legislative power derived from entry 2 of list iii of the
seventh schedule to the companystitution but on an independent
statute which specifically deals with the case of a small
section of persons namely adolescent offenders traceable to
the legislative power derived from the expressions prisons
and borstal institutions in entry 4 of the state list. if
in the case of such offenders the state government makes an
order under section 10-a of the act directing their
detention in a borstal school then they cease to be persons
undergoing imprisonment for life on being companyvicted of an
offence for which death is also prescribed as one of the
punishments but they will become detenus in a borstal
school. the act which is a local law therefore prevails on
all the provisions of the companye including section 433a of the
code as there is numberprovision which excludes the operation
of the act which deals with borstal institutions. section
433a of the companye was introduced number to set at naught
provisions like section 10-a of the act which dealt with a
special class of offenders like adolescent offenders but
only to regulate capricious and arbitrary decisions under
section 432 of the companye and the remission rules sometimes
reducing the sentence of imprisonment for life imposed on
persons who had been companyvicted of capital offences but had
been sentenced to imprisonment for life to short periods
like five to six years. that is apparent from the numberes in
clauses found in the bill under which section 433a of the
code was introduced. the relevant clause is given below
clause 33 section 432 companytains provision
relating to powers of the appropriate government to
suspend or
remit sentences. the joint companymittee on the indian
penal companye  amendment  bill 1972 had suggested the
insertion of a proviso to section 57 of the indian
penal companye to the effect that a person who has been
sentenced to death and whose death sentence has been
commuted into that of life imprisonment and persons who
have been sentenced to life imprisonment for a capital
offence should undergo actual imprisonment of 14 years
in jail. since this particular matter relates more
appropriately to the criminal procedure companye a new
section is being inserted to companyer the proviso inserted
by the joint companymittee. the joint companymittees recommendation on section 57 of
the indian penal companye which is referred to in the above
clause was as follows
section 57 of the companye as proposed to be amended
had provided that in calculating fractions of terms of
punishment imprisonment for life should be reckoned as
equivalent to rigorous imprisonment for twenty years. in this companynection attention of the companymittee was
brought to the aspect that sometimes due to grant of
remission even murderers sentenced or companymuted to life
imprisonment were released at the end of 5 to 6 years. the companymittee feels that such a companyvict should number be
released unless he has served at least fourteen years
of imprisonment. it is obvious that parliament which was aware of laws
like the act which were in force in the states did number
choose to interfere with them by enacting section 433a of
the companye. if it intended to nullify or modify such laws the
number-obstante clause in section 433a would have been more
comprehensive including all local statutes enacted for the
benefit of children and juvenile or adolescent offenders. companysidering the case in the light of the observations made
in maru rams case  supra  i feel that section 10-a of the
act remains unimpaired and it has to be given full effect
even after the enactment of section 433a of the companye. the
contrary view expressed by the madras high companyrt in in re. ganapatt cannumber be accepted as companyrect. i am therefore of the view that section 433a of the
code
would number operate in respect of persons dealt with under
section 10-a of the act and that parliament never intended
while enacting section 433a to deny the benefit available to
adolescent offenders under section 10-a of the act. when
once this companyclusion is reached the argument that by reason
of article 254 of the companystitution the act should yield in
favour of a later central legislation which is repugnant to
the act would number arise because there would be numbersuch
repugnancy at all. if section 433a of the companye is kept out
of the way section 10-a of the act should be interpreted in
the same way in which it was understood all along. so
construed a person who is detained under section 10-a of the
act in a borstal school would have to be released on his
attaining 23 years of age. my view receives support from the
decision of this companyrt in kunwar bahadur ors. v. state of
uttar pradesh which was a case under the u.p. borstal act
1938 the relevant part of which reads thus
it was then argued that so far as appellant nand
kishore is companycerned he appears to be only 15 years at
the time when the occurrence took place and it appears
that when he was sent to prison the jailor referred him
to the sewa sadan under s. 7 of the united provinces
borstal act 1938. under this section where a prisoner
is sentenced for transportation i.e. life imprisonment
and is below the age of 21 years he should be sent to
borstal school where he cannumber be detained for more
than five years. the law thus companytemplates that for
such an offender the sentence of five years will be
equivalent even to a higher sentence of life
imprisonment. it is number disputed before us that the
appellant nand kishore had already served 5 years in
that institution and has been released therefrom. the
question therefore of his surrendering to serve the
remaining sentence does number arise. with this
modification the appeal is dismissed. in view of the foregoing there is numberground to
interfere with the decision of the high companyrt. the appeal
is therefore dismissed. sabyasachi mukharji j. with great respect i agree with
the order proposed and also with the reasoning of my learned
brother justice venkataramiah. there is however some
anumberaly in section 10a of the andhra pradesh borstal schools
act 1925. the said section has been set out in the
judgment. it empowers the state government to transfer
offenders sentenced to transportation to borstal
school. it further provides that if the state government is
satisfied that any offender who has been sentenced to
transportation either before or after the passing of the
madras borstal schools  amendment  act 1939 and who at the
time of companyviction was number less than 16 years number more than
21 years might with advantage be detained in borstal
school direct that such offender shall be transferred to a
borstal school there to serve the whole or any part of the
unexpired residue of the sentence.  emphasis supplied . the
section further stipulates that the provisions of the said
act should apply to such offender as if he had been
originally sentenced to detention in a borstal school. in
the instant case by the order dated 12th september 1980
the state government had directed that the petitioner should
be detained in a borstal school to serve the unexpired
portion of the sentence till he attains the age of 23. my
learned brother has with the aid of the principle
enunciated by lord asquith in east end dwelling company limited v.
finsbury borough companyncil deemed that the original sentence
of transferring the petitioner to a borstal school has been
passed by the companyrt at the time of imposing sentence
originally. but in fact in passing the order under section
10a expression used by the state government is that the
person companycerned should be detained in borstal school to
serve the unexpired portion of the sentence till he attains
the age of 23 years. so the sentence actually passed by the
enabling section by the state government directs the detenu
to serve the unexpired portion of the sentence.