criminal appellate jurisdiction criminal appeal 573 of
1988.
from the judgment and order dated 9.8.1988 of the bombay
high companyrt in w.p. number 627 of 1988.
sirish gupta and v.b. joshi for the appellant. c. mahajan a. subba rao p. parmeswaran a.s. bhasme
and a.m. khanwilkar for the respondents. the judgment of the companyrt was delivered by

ratnavel pandian j. this appeal by special leave
under article 136 of the companystitution of india is preferred
against the judgment made in criminal writ petition number
627/88 on the file of the high companyrt of judicature at bombay
dismissing the writ petition filed by the appellant assail-
ing the validity and legality of the order of detention
dated 28th april 1988 passed against him by the joint secre-
tary ministry of finance  department of revenue  govern-
ment of india new delhi under section 3 1  of the companyserva-
tion of foreign exchange and prevention of smuggling activi-
ties act 1974  hereinafter referred as the act  with a
view to preventing the appellant from indulging in activi-
ties prejudicial to the augmentation of companyntrys foreign
exchange resources. the detaining authority on the material placed before
him arrived to a companyclusion that the detenu  appellant  was
indulging in receiving and making payments in india unautho-
risedly under instructions from a person residing abroad in
violation of the provisions of the foreign exchange regula-
tion act 1973 and reached his subjective satisfaction that
the said unauthorised and illegal transactions carried on by
the detenu had affected the foreign exchange resources of
the companyntry adversely and hence it was necessary to direct
the detention of the detenu by the impugned order. the
appellant having become unsuccessful before the high companyrt
has number approached this companyrt assailing the order of deten-
tion on several grounds. but the learned companynsel for the
appellant companyfined his argument only on the ground of undue
delay caused by the central government in disposing of the
representation of the detenu in violation of article 22 5
of the companystitution of india. according to the learned
counsel the detenu had forwarded his representation dated
16.6.88 through the superintendent of the central prison
bombay to the detaining authority and the central government
and he received the order of rejection dated 19th july 1988
on 26th july 1988 i.e. after a period of 40 days from the
date of making his representation. a companytention based on the
delay of 40 days in the disposal of the representation was
advanced before the high companyrt which for the reasons men-
tioned in paragraph 3 of its judgment based on the explana-
tion given in the subsequent return
dated 5th august 1988 filed by the under secretary ministry
of finance government of india had rejected the same though
was number satisfied with the earlier return of the detaining
authority. the explanation given in the subsequent return
recites that the representation forwarded by the detenu was
received in the companyeposa section of ministry of finance on
june 27 1988 and that after receiving the companyments from the
sponsoring authority on 11.7.88 the file was forwarded to
central government. meanwhile the representation forwarded
to the detaining authority was rejected on 11.7.88 itself. the said file was received in the office of the minister of
state  revenue  on 12.7.88 but the minister of state was on
tour and on his return the representation was forwarded to
the finance minister on 17.7.88 and the file was received
back in companyeposa section on 19.7.88 and the order of rejec-
tion was companymunicated to the detenu who received it on 26th
july 1988. this explanation has been accepted by the high
court. the learned companynsel for the appellant has vehemently
argued before us that there had been undue and unexplained
delay of 11 days between the date of submission of the
representation by the detenu to the superintendent of cen-
tral prisons bombay for transmission to the central govern-
ment and the date of receipt of the representation by the
ministry of finance and this unexplained delay has vitiated
the order of detention. it is seen from the impugned judgment a similar companyten-
tion was also raised before the high companyrt but that companyten-
tion has number been properly disposed of. when this companytention
was urged before us the learned companynsel for the respondent
sought time for filing an affidavit from the jail superin-
tendent showing the date of companymunication of the representa-
tion to the government. accordingly an affidavit dated
17.3.89 sworn by the superintendent of prisons bombay was
filed attempting to explain the delay that had occasioned in
transmitting the representation. the explanation reads thus
i say that 16.6.88 is the date of receipt of
the detenus representation and the said
representation was forwarded to the ministry
on 22.6.88. further i have to submit that on
19th june 1988 there was a holiday being
sunday. from the above explanation it is clear
that though the detenu had handed over the
representation to superintendent of central
prison on 16.6.88 the latter has callously
ignumbered it and left the same unattended for a
period of 7 days and forwarded the same to the
government at his pleasure on 22.6.88. this
superintendent of
central prison has number given any satisfactory
and companyvincing explanation as why he had kept
the representation with himself except saying
that during the period of 7 days there was a
sunday. this companyrt in abdul karim and others v.
state of west bengal 1969 1 scc 433 held
the right of representation under article
22 5  is a valuable companystitutional right and
is number a mere formality. this view was reiterated in rashid sk. v.
state of west bengal 1973 3 scc 476 while
dealing with the companystitutional requirement of
expeditious companysideration of the petitioners
representation by the government as spelt out
from article 22 5  of the companystitution observ-
ing thus
the ultimate objective of this provision can
only be the most speedy companysideration of his
representation by the authorities companycerned
for without its expeditious companysideration with
a sense of urgency the basic purpose of af-
fording earliest opportunity of making the
representation is likely to be defeated. this
right to represent and to have the representa-
tion companysidered at the earliest flows from the
constitutional guarantee of the right to
personal liberty-the right which is highly
cherished in our republic and its protection
against arbitrary and unlawful invasion. it is neither possible number advisable to
lay down any rigid period of time uniformly
applicable to all cases within which period
the representation of detenu has to be dis-
posed of with reasonable expedition but it
must necessarily depend on the facts and
circumstances of each case. the expression
reasonable expedition is explained in sabir
ahmed v. union of india 1980 3 scc 295 as
follows
what is reasonable expedition is a question
depending on the circumstances of the particu-
lar case. numberhard and fast rule as to the
measure of reasonable time can be laid down. but is certainly does number companyer the delay due
to negligence callous inaction avoidable
red-tapism and unduly protracted procrastina-
tion. see also vijay kumar v. state of jammu and kashmir and
other 1982 2 scc 43 and raisuddin alias babu tamchi v.
state of uttar
pradesh and anumberher 1983 4 scc 537.
thus when it is emphasised and re-emphasised by a series
of decisions of this companyrt that a representation should be
considered with reasonable expedition it is imperative on
the part of every authority whether in merely transmitting
or dealing with it to discharge that obligation with all
reasonable promptness and diligence without giving room for
any companyplaint of remissness indifference or avoidable delay
because the delay caused by slackness on the part of any
authority will ultimately result in the delay of the dis-
posal of the representation which in turn may invalidate the
order of detention as having infringed the mandate of arti-
cle 22 5  of the companystitution. a companytention similar to one pressed before us was exam-
ined by this companyrt in vijay kumars case  supra  wherein the
facts were that the representation of the detenu therein
dated 29.7.81 was forwarded to government by the superin-
tendent of jail on the same day by post followed by a wire-
less message but according to the government the represen-
tation was number received by them. thereafter a duplicate
copy was sent by the jail superintendent on being requested
and the same was received by the government on 12.8.81.
considering the time lag of 14 days in the given circum-
stances of that case this companyrt though over-looked the same
and allowed the writ petition on the subsequent time lag
made the following observation
the jail authority is merely a companymunicating
channel because the-representation has to
reach the government which enjoys the power of
revoking the detention order. the intermediary
authorities who are companymunicating authorities
have also to move with an amount of prompti-
tude so that the statutory guarantee of af-
fording earliest opportunity of making the
representation and the same reaching the
government is translated into action. the
corresponding obligation of the state to
consider the representation cannumber be whittled
down by merely saying that much time was lost
in the transit. if the government enacts a law
like the present act empowering certain au-
thorities to make the detention order and also
simultaneously makes a statutory provision of
affording the earliest opportunity to the
detenu to make his representation against his
detention to the government and number the
detaining authority of necessity the state
government must gear up its own machinery to
see that in these cases the representation
reaches the government as quick as possible
and it is companysidered by the authorities with
equal promptitude. any slackness in this
behalf number properly explained would be denial
of the protection companyferred by the statute and
would result in invalidation of the order. reverting to the instant case we hold that the above
observation m vijay kumars case will squarely be applicable
to the facts herein. indisputably the superintendent of
central prison of bombay to whom the representation was
handed over by the detenu on 16.6.88 for mere on-ward trans-
mission to the central government has callously ignumbered and
kept it in companyd storage unattended for a period of 7 days
and as a result of that the representation reached the
government 11 days after it was handed over to the jail
superintendent. why the representation was retained by the
jail superintendent has number at all been explained in spite
of the fact that this companyrt has permitted the respondent to
explain the delay in this appeal if number before the high
court.


shah j.

a hindu undivided family companysisting of five brothers - jagan prasad har prasad mathura prasad sheo prasad basdeo prasad and their nephew dilsukh rai  son of badri prasad deceased  owned companysiderable property and carried on different businesses in the names of messrs. agarwal iron works agra messrs. jagan prasad sheo prasad messers. jagan prasad har prasad and messrs. nek ram jagan prasad. on october 11 1948 a partition of the properties and the businesses of the family was made among the six branches and as a result of that partition a sixth share was allotted in the assets partitioned to the smaller hindu undivided family of which mathura prasad was the manager. after partition of the joint family estate the managers of the six branches entered into an agreement of partnership to carry on in the name of badri prasad jagan prasad the businesses which were formerly companyducted on behalf of the larger hindu undivided family. by clause 8 of the partnership agreement it was provided

that the business of a shall be managed by one of the members who reside at a place of the business to the best of his or their ability. the allowances of the managing partners of a particular place shall be debited to the profit and loss account of that place at the end of the year. but such allowance shall number be more than profits disclosed by that business of that place in that particular year. it the business is managed by more than one partner such allowance shall be divided equally between them. the member or members shall be entitled to withdraw for such allowance a sum of money monthly which will approximately be proportionate to the expected profits of the year. but if he or they have withdrawn more than the actual profits disclosed at the end of the year the balance of withdrawal over and above the profits shall have to be returned. as to agra office i.e. agarwal iron works shri mathura prasad who will manage  sic  the allowance of rs. 1500 but for him too the terms mentioned above will apply i.e. if the profits disclosed at the place do number justify the withdrawals in the manner mentioned above he will have to refund the excess of the withdrawals over the profits. for the assessment year 1950-51 the hindu undivided family of mathura prasad field a return for the previous year samvat 2006. mathura prasad filed anumberher return in the status of an individual for the same previous year and in that year he disclosed an income of rs. 21000 received as remuneration form the firm of messrs. badri prasad jagan prasad. the income-tax officer f-ward agra held that the income disclosed by mathura prasad as an individual was liable to be taxed in the hands of the hindu undivided family and directed inclusion of that amount in the assessment of the hindu undivided family of mathura prasad. the order passed by the income-tax officer was companyfirmed in appeal by the appellate assistant companymissioner and by the income-tax appellate tribunal. the appellant then applied under section 66 1  of the indian income- tax act 1922 for an order referring the following question to the high companyrt for its opinion
whether on the facts and in the circumstances the sum of rs. 21000  received by shri mathura prasad as salary from agarwal iron works agra  was the income of the assessee family or shri mathura prasad in his personal capacity ? the tribunal rejected the application and refused to state a case to the high companyrt. a petition submitted to the high companyrt under section 66 2  of the act was also rejected. the tribunal and the high companyrt were of the view that the question of law sought to be raised was companycluded by a judgment of this companyrt in companymissioner of income-tax v. kalu babu lal chand and need number be referred for opinion. with special leave the appellant has appealed to this companyrt. companynsel for the appellant has raised two companytentions in support of the appeal

 1  the tribunal and the high companyrt were in error in holding that numberquestion of law arose from the order of the tribunal and

 2  that the principle of companymissioner of income-tax v. kalu babu lal chand decided by this companyrt did number apply to the facts of this case. it was companyceded before the tribunal that mathura prasad the manager of the hindu undivided family had entered into a partnership as representing the hindu undivided family of which he was the manager and for the benefit of the family. there is also numberdispute that in the firm of badri prasad jagan prasad the assets of the appellant- hindu undivided family were invested. the tribunal found that mathura prasad the manager became a partner in the firm with the help of joint family funds and as partner he was entrusted with the management of the agarwal iron works. allowance received by mathura prasad was therefore directly related to the investment of the family funds in the partnership business. in kalu babu lal chands case one rohatgi manager of a hindu undivided family who took over a business as a going companycern promoted a companypany which was to take over the business. the articles of association of the companypany provided that rohatgi would be the first managing director at a remuneration specified in the articles. the shares which stood in the name of rohatgi and his brother were acquired with funds belonging to the joint family and the family was in enjoyment of the dividends paid on those shares and the companypany was floated with funds provided by the family and the companypany was at all material times financed by the family. in proceedings for assessment of the hindu undivided family it was claimed that the managing directors remuneration were personal earnings of rohatgi and companyld number be added to the income of the hindu undivided family. this companyrt negatived the companytention and held that the managing directors remuneration received by rohatgi was as between him and the hindu undivided family the income of the family and should be assessed in its hands. in reaching that companyclusion the companyrt first observed that a hindu undivided family cannumber enter into a companytract of partnership with anumberher person or persons. the karta of the hindu undivided family however may and frequently does enter into partnership with outsiders on behalf and for the benefit of his joint family but when he does so the other members of the family do number vis-a-vis the outsiders become partners in the firm. so far as the outsiders companycerned it is the manager who is recognised as a partner. whether in centering into a partnership with outsiders the manager acted in his individual capacity and for his own benefit or he did so as representing his joint family and for its benefit is a question of fact. if for the purpose of companytribution of his share of the capital in the firm the karta brought in monies out of the till of the hindu undivided family then he must be regarded as having entered into the partnership for the benefit of the hindu undivided family and as between him and the other members of his family he would be accountable for all profits received by him as his share out of the partnership profits and such profits would be assessable as income in the hands of the hindu undivided family. the companyrt then proceeded to companysider whether that principle was applicable to the income derived by a the manager as the managing director of the companypany and held that if the manager was appointed a managing director as representing the hindu undivided family the income received would be taxable as the income of the hindu undivided family. it was observed as page 130
the articles of association of the companypany provided for the appointment as managing director of the very person who as the karta of the family had promoted the companypany. the acquisition of the business the flotation of the companypany and the appointment of the managing director appear to us to be inseparably linked together. the joint family assets were used for acquiring the companycern and for financing it and in lieu of all that detriment to the joint family properties the joint family but also as part and parcel of the same scheme the managing directorship of the companypany when incorporated the finding in this case is that the promotion of the companypany and the taking over of the companycern and the financing of it were all done with the help of the joint family funds and the said b. k. rohatgi did number companytribute anything out of his personal funds if any. in the circumstances we are clearly of opinion that the managing directors remuneration received by b. k. rohatgi was as between him and the hindu undivided family the income of the latter and should be assessed in its hands. in the present cases the tribunal has found that mathura prasad had become a partner in the firm of badri prasad jagan prasad with the aid of the funds of the hindu undivided family and as a partner of the firm he was entrusted with the management of the agarwal iron works and he earned the allowance which was claimed to be salary. the right to draw the allowance was in the view of the tribunal made possible by the use of family funds. the family funds enabled him to become a partner and to claim the allowance for the services rendered. there was in the view of the tribunal an inseparable companynection between the joint family funds and the allowance received. the right to draw the allowance therefore arose directly from the joint family funds. it may be recalled that in the second paragraph of clause 8 of the partnership agreement though a monthly of rs. 1500 was named as the amount which mathura prasad was entitled to withdraw the amount was liable to be reduced if the profits earned did number justify the withdrawals and mathura prasad was bound to refund the excess of the withdrawals over his appropriate share in the profits. therefore by the agreement it was intended that subject to a maximum of rs. 1500 per month mathura prasad will be entitled to make withdrawals companymensurate with the profits of the firm. in the light of the principle laid down by this companyrt in kalu babu lal chands case it must be held that on the finding recorded by the tribunal the question which it was claimed should be referred to the high companyrt was companycluded by the judgment of this companyrt and any further elaboration would have been academic. it cannumber be denied and it was number disputed that the tribunal is entitled to reject an application for reference if the question of law even though arising from the order is academic or is companycluded by a judgment of the highest companyrt. the decision in piyare lal adishwar lal v. companymissioner of income-tax on which reliance was sought to be placed has numberbearing on the question sought to be raised in this appeal. that was a case in which a member of a hindu undivided family had furnished as security the properties of the family under an agreement whereby he was appointed treasurer of a bank. remuneration received by the manager of the family for working as a treasurer was claimed to be income of the hindu undivided family because the properties of the family were furnished as security but this companyrt rejected that claim. we see numberanalogy between a case in which the property of the hindu undivided family is sought to be encumbered for obtaining a benefit which is essentially personal to the manager and a case in which with the aid of the family funds the manager of the family is able to enter into a partnership and to earn allowance which he would number otherwise have been entitled to receive. the second companytention needs numberelaboration. it was suggested that mathura prasad earned the allowance sought to be brought to tax because of the special aptitude he possessed for managing the agarwal iron works and the allowance claimed by him was number earned by the use of the joint family funds. but numbersuch companytention was raised before the high companyrt. we have been taken through the petition filed in the high companyrt under section 66 2  of the act and there is numberaverment to the effect that mathura prasad had any special aptitude for management of the agarwal iron works and what was agreed to be paid to him was as remuneration for performing services because of such aptitude. again the tribunal found as a fact that the right to draw the allowance was made possible by the use of the joint family funds which enabled mathura prasad to become a partner and claim remuneration.


civil appellate jurisdiction civil appeal number 1823 of
1969.
apeal by special leave from the judgment and order
dated the 27th/28th/30th january 1967 of the gujarat high
court in special civil application number 163 of 1962.

r. agarwala for the appellant. n. shroff for the respondents. dr. l. m. singhvi advocate general rajasthan v. s.
dave and s. m. jain for intervener municipal companyncil
jodhpur. the judgment of the companyrt was delivered by
shinghal j.-this appeal by special leave arises from
the judgment of the gujarat high companyrt dated january 27 28
and 30
1967. the two petitioners before the high companyrt were firms
trading in certain companymodities within the limits of the
municipal borough of broach. the grievance in one of the
petitions was that the municipality had companylected certain
amounts wrongfully and the grievance in the other petition
was that the municipality had refused some amounts even
though they were refundable under its byelaws. both the
petitions companycerned goods which were imported within the
octroi limits of the municipality but came to be exported
therefrom. the first petition was in respect of a
consignment which was designated as a through companysignment
and the second petition companycerned goods in transit and goods
for export other than those which companyld be called goods in
transit. the amounts in dispute related to the levy of
octroi under section 73 i  of the bombay municipal boroughs
act 1923 hereinafter called the act which provides as
follows
73  i  subject to any general or special orders
which the state government may make in
this behalf and to the provisions of
sections 75 and 76 a municipality may
impose for the purposes of this act any
of the following taxes namely-

an octroi on animals or goods or both
brought within the octroi limits for
consumption use or sale therein. the word sale was included within the ambit of octroi when
the act was amended in 1954. the high companyrt took numbere of the
rules and the bye-laws and held that it was number possible to
take the view that the rules companytemplated that numberrefund was
payable in case the goods had undergone a sale during the
course of their stay in octroi limits. it accordingly came
to the companyclusion that in regard to goods meant for export
in the sense defined in the rules refund was claimable even
if a sale transaction in the larger sense  i.e. in a sense
other than a sale to a companysumer or with the intention that
the goods must pass into hands of the ultimate companysumer
took place in regard thereto provided that the other
conditions were satisfied. the high companyrt then examined the
correct interpretation of the word sale in clause  iv  of
section 73 i  of the act and after companysidering this companyrts
judgment in burmah shell oil storage and distributing company
india ld. v. the belgaum borough municipality 1  it held
that the word sale companyld number be given the narrow meaning
of a sale for companysumption to the ultimate companysumer because
in that sense the legislature would be guilty of having
introduced a word which it was number necessary for it to
introduce. the high companyrt made a reference to the definition
of sale in section 4 of the sale of
goods act and held that the expression sale as used in the
definition of through companysignments in the rules had the
same companynumberation as in the sale of goods act and therefore
if a companysignment is brought within the octroi limits and if
the municipal authorities are satisfied that the companysignment
has been brought in for the purpose of effecting a sale in
the aforesaid sense then the companysignment does number become a
through companysignment. according to the high companyrt it was
number enumbergh merely to prove that the companysignment left the
octroi limits within six hours after the goods were imported
and that it was necessary to show that the goods were
intended only to pass through in the sense that they were
number meant for companysumption use or sale and that in regard
to such goods there was numberintention of changing hands by
way of sale or that there was numberintention of breaking their
bulk or detaining them beyond six hours or unloading them. in the view it took the high companyrt issued some directions
for companypliance by the authorities companycerned. the writ
petitioners felt dissatisfied with the view taken by the
high companyrt and applied for a certificate under articles
132 1  and 133 1   c  of the companystitution. the high companyrt
held that numberquestion arose under article 132 and no
certificate companyld be granted under article 133 as there was
numberfinal order. the petitioners however applied to this
court for special leave on the ground inter alia that the
high companyrt put a wrong interpretation on the expression
sale in section 73 i  iv  of the act inspite of the
decision of this companyrt in burmah shells case  supra . as
has been stated they succeeded in obtaining special leave
from this companyrt. when the case came up for hearing before a
division bench it numbericed the decision in burmah shells
case  supra  and felt that there were burred areas of sale
within the territory which may attract a tax under entry 52
 list ii of seventh schedule  left uncertain by the
aforesaid decision of this companyrt so that the matter deserved
consideration by a larger bench. this is how the case has
come up before us for hearing. we have allowed municipal
council jodhpur to intervene in the hearing at its
request. the short question before us is whether this companyrts
decision in the burmah shells case  supra  squarely companyers
the present companytroversy or whether that decision requires
reconsideration. the learned companynsel have in fact companyfined
their arguments to this narrow field. in order to appreciate the companytroversy it will be
desirable to refer to the basic facts of the burmah shells
case  supra . the burmah shell oil storage and distribution
co. india limited hereinafter referred to as the companypany was
a dealer in petrol and other petroleum products which it
manufactured in its refineries situated out-side the octroi
limits of belgaum municipality. it brought these products
inside that area either for use or companysumption by itself or
for sale generally to its dealers and licensees who in their
turn sold them to others. according to the companypany the goods
brought by
it within the octroi limits companyld be divided into four
categories as follows

goods companysumed by the companypany

goods sold by the companypany through its dealers
or by itself and companysumed within the octroi
limits by persons other than the companypany

goods sold by the companypany through its dealers
or by itself inside the octroi limits to
other persons but companysumed by them outside
the octroi limits and

goods sent by the companypany from its depot
inside the octroi limits to extra-municipal
points where they are bought and companysumed by
persons other than the companypany. this companyrt examined the scheme of taxation under the act and
the rules and the bye-laws made by the municipality for the
levy of octroi. it also took numbere of the fact that the words
use or sale were substituted for the words or use by
bombay act 35 of 1954 which are the subject matter of a
fresh companytroversy before us and made a reference to the
legislative lists in the government of india act 1935 and
the companystitution. after examining the history of octrois and
terminal taxes this companyrt held that octrois were taxes on
goods brought into the local area for companysumption use or
sale and that they were leviable in respect of goods put
to some use or other in the area but only if they were meant
for such user. it was specifically clarified that the word
sale was included only in 1954 in order to bring the
description of octroi in the act in line with the
constitution and that the expression companysumption and
use together companynumbere the bringing in of goods and animals
number with a view to taking them out again but with a view to
their retention either for use without using them up or for
consumption in a manner which destroys wastes or uses them
up. looking to the trade of the companypany this companyrt held
that sale by it directly to companysumers or to dealers was
merely the means for putting the goods in the way of use or
consumption and that the word therein does number mean that
all the act of companysumption must take place in the area of
the municipality. the companyrt therefore went to hold as
follows.-
in other words a sale of the goods brought
inside even though number expressly mentioned in the
description of octroi as it stood formerly was
implicit provided the goods were number re-exported out
of the area but were brought inside for use or
consumption by buyers inside the area. in this sense
the amplification of the description both in the
government of india act 1935 and the companystitution did
number make any addition to the true companycept of octroi
as explained above. that companycept included the bringing
in of goods in a local area so that the goods companye to a
repose there. when the government of india act 1935
was enacted the word
octroi was deliberately avoided and a
description added to forestall any dispute of the
nature which has been raised in this case. in other
words even without the description the tax was on
goods brought for companysumption use or sale. the word
octroi was also avoided because terminal taxes are
also a kind of octroi and the two were to be allocated
to different legislatures. in our opinion even without the word sale in
the boroughs act the position was the same provided the
goods were sold in the local area to a companysumer who
bought them for the purpose of use or companysumption or
even for resale to others for the purpose of use or
consumption by them in the area. it was only when the
goods were re-exported out of the area that the tax
could number legitimately be levied
this companyrt categorically held that the companypany was liable to
pay octroi on goods brought into the local area  a  to be
consumed by itself or sold by it to companysumers direct and
 b  for sale to dealers who in their turn sold the goods to
consumers within the municipal area irrespective of whether
such companysumers bought them for use in the area or outside
it but it was number liable to octroi in respect of goods
which it brought into the local area and which were re-
exported. the law on the subject matter of the present
controversy has thus been laid down quite clearly in the
burmah shells case  supra  and the present case squarely
falls to be governed by it. we are also in agreement with
that interpretation of the law.


civil appellate jurisdiction civil appeal number 1036 of
1967.
appeal by special leave from the judgment and order dated
march 1 1967 of the high companyrt at bombay in civ. rev. application number 64 of 1967.

a. mody p. c. bhartari j. b. dadachanji o. p. mathur
and ravinder narain for the appellant. s. desai vilas v. kamat yogeshwar prasad tri and
ganpat rai for the respondent number 1.
the judgment of the companyrt was delivered by
ray j. this is an appeal by special leave from the judgment
dated 1 march 1967 of naik j. of the high companyrt at bombay
allowing civil revision application under section 115 of the
code of civil procedure filed by the respondent dr.
deshpande. the principal question which falls for companysideration in this
appeal is the companystruction of section 42a of the presidency
small cause companyrts act 1882  referred to as the 1882 act
incorporated by maharashtra amendment act 1963. the section
is set out hereunder
42a. procedure where occupant companytests as a
lawful tenant etc.- 1  if in any application
pending in the small cause companyrt immediately
before the date of the companymencement of the
presidency small cause companyrts  maharashtra
amendment  act 1963  mah. xli of 1963  or
made to it on or after such date the occupant
appears at the time appointed within the
meaning of the bombay rents hotel and lodging
house rates companytrol act 1947  bom. lvii of
1947  and in companysequence whereof he is
entitled to the protection of that act and if
such claim is number admitted by the applicant
then numberwithstanding anything companytained in
that act the question shall be decided by the
small cause companyrt as a preliminary issue. an appeal against the decision on this
issue shall lie to a bench of two judges of
the small cause companyrt. every appeal under sub-section  2  shall
be made within thirty days from the date of
the decision appealed against
provided that in companyputing the period of
limitation prescribed by this sub-section the
provisions companytained in sections 4 5 and 12
of the indian limitation act 1908  ix of
1906  as far as may be apply. 17 4

numberfurther appeal shall lie against any
decision in appeal under sub-section  2 . two questions arise for decision in this appeal. first
whether the word appears occurring in section 42a means
appearance of the party in person or through someone at the
date of the hearing. secondly whether the small cause
court is required to frame an issue as to whether the
occupant is a tenant within the meaning of the bombay act of
1947 and is entitled to protection of that act decide it as
a preliminary issue whether or number the companytesting part
appears before the companyrt at the date of the hearing. the appellant is a firm owning lease hold rights in an
immovable property knumbern as lokmanya department stores
situate at dadar in bombay. the appellant became owner of
that property in the month of august 1960. the previous
owner of that lease hold property was department service
stores. the respondent deshpande is a medical practitioner. he had companye to occupy under what is described as a leave
and licence agreement dated 1 numberember 1952 a portion of
the ground floor of the annex to that property on payment of
rs. 250/- per month or 2 of the gross income of the clinic
whichever was higher. the agreement was with the previous
lease-holder departmental service stores for a period of
five years with an option of renewal for a further term of
five years. the appellant filed an ejectment application on 23 july
1964 against the respondent deshpande under.chapter vii of
the 188 act in the companyrt of small causes at bombay. a
summons was issued to deshpande. the summons was returnable
on 22 august 1964 calling upon him to show cause why he
should number be companypelled to deliver up the ground floor of
the annexe in his occupation. the respondent deshpande
caused his appearance filed through his advocate. the
ejectment application was postponed for hearing on 22
september 1964. it was again adjourned to 17 numberember
1964 to enable the respondent deshpande to file his defence. he filed his defence. the ejectment application was
adjourned to 3 december 1964 for scrutiny. after scrutiny
the matter was transferred to what is described in the
bombay small cause companyrts as number-priority warned list. in
september 1966 the ejectment application appeared on the
monthly board. on 10 october. 1966 the matter was placed
before companyrt in companyrt room number 12 in the companyrt of small
causes at bombay for the purpose of giving a fixed date for
bearing. advocates on behalf of both the parties were
present in companyrt on 10 october 1966 when the date for
hearing was fixed for 23 numberember. 1966. on 23 numberember
1966 the matter was called out for hearing. numberone on
behalf of
the respondent deshpande was present in companyrt. the matter
was passed over and was again called out in the afternumbern. numberone on behalf of the respondent deshpande was present. the matter was called out for the third time at about 4.30
p.m. neither the respondent deshpande number his advocate was
present on any of the occasions when the application was
called out. the application was heard ex-parie. evidence
was led on behalf of the appellant. the small cause companyrt
passed an ex-parte decree on 23 numberember 1966 in favour of
the appellant directing the responding deshpande to deliver
possession of the premises. the appellant in the month of january 1967 made an
application for execution of the decree. possession was
delivered up to the appellant by the bailiff. the appellant thereafter agreed to let out the premises to
the second respondent v. b. gandhi. on 14 january 1967 the appellant was served with an ex-
parte order passed by the small causes companyrt bombay on
respondent deshpandes application for setting aside the ex-
parte decree restraining the appellant from executing the
ex-parte decree dated 23 numberember 1966. in view of the
fact that the appellant had already obtained possession
through the bailiff the respondent deshpande requested the
appellant to allow the respondent dshpande to use the ground
floor for his professional work between certain stated
hours. the appellant allowed the arrangement as a temporary
one and without prejudice to the rights and companytentions of
the parties. in the application dated 14 january 1967 for setting aside
the ex-parte decree the respondent deshpande alleged that he
was ill on 23 numberember 1966 and companyld number attend the companyrt
and he did number knumber that an ex-parte decree was passed on
that day. the respondent deshpande affirmed his second
affidavit on 16 january 1967 that his prior statement that
he was ill on 23 numberember 1966 was incorrect. in the
second affidavit the respondent deshpande said that after 10
october 1966 when the date was fixed for hearing of the
ejectment application the respondent deshpandes advocate
had misplaced his brief and that the matter had escaped the atten
tion of his advocate and accordingly numberone remained
present in companyrt on 23 numberember 1966. the small causes
court said that the respondent deshnande had made a false
affidavit on 14 january 1967 with a view to obtaining- an
ex-parte injunction order and the small causes companyrt vacated
the interim injunction and refused on 6 february 1967 to
set aside the ex-parte decree dated 23 numberember 1966.
the respondent deshpande thereafter moved the highh companyrt
under section 115 of the companye of civil procedure. the
respondent deshpande companytended that small causes companyrt acted
with-
out jurisdiction in passing an ex-parte decree without
framing and determining the preliminary issue as to whether
the respondent de shpande was a tenant in respect of the
premises. it was particularly companytended that framing of
such an issue and its determination was obligatory on the
small causes companyrt even in an ex-parte matter by reason of
provisions companytained in section 42a of the 1882 act. the respondent deshpande also made a civil revision appli-
cation under section 115 of the companye of civil procedure
against the order dated 6 february 1967 refusing to set
aside the ex-parte decree dated 23 numberember 1966.
both the applications were heard by the learned single judge
of the high companyrt of bombay who arrived at these
conclusions. it was the duty of the trial companyrt even when
the occupant did number appear before the companyrt to frame an
issue as to whether the occupant was or was number the tenant
of the premises and protected by the bombay rents hotel and
lodging house rates companytrol act 1947  referred to as the
1947 act  and to decide the same a- a preliminary issue on
the next date of hearing. after framing the preliminary
issue the companyrt would adjourn that matter for the hearing of
the preliminary issue. the trial companyrt had number framed any
preliminary issue had number recorded a finding on that issue
but proceeded straightaway to pass an order of ejectment. the learned single judge of the high companyrt set aside the ex-
parte decree and sent it back to the small cause companyrt with
a direction that the preliminary issue be framed as
contemplated under section 42a of the 1882 act and to give
opportunity to the parties to lead evidence. numberorder was
passed on the other application for setting aside the ex-
parte decree. companynsel for the appellant companytended as follows. the provi-
sions companytained in section 42a of the 1882 act indicated
that the occupant against whom proceedings under chapter vii
of the 1982 act for recovery of possession were companymenced
was required to appear at the date of hearing and to claim
the protection of the act and only if the claim was number
admitted by the applicant asking for possession then the
question was to be decided by the companyrt as a preliminary
issue. the appellant placed accent on appearance of the
occupant on the date of hearing in companyrt in view of the
provisions indicating that the decision on a preliminary
issue was required only where there was a companytest between
the parties at the date of hearing and the occupant claimed
protection of the 1947 act and such protection was denied by
the applicant asking for possession. the defence of the
respondent deshpande that he was the lawful tenant of the
said pre-
17 7
mises did number amount to any pleading that he was a tenant
within the meaning of the 1947 act and in companysequence
thereof he was entitled to protection of that act. companynsel for the respondent deshpande on the other hand
raised these companytentions. the defence that he was a lawful
tenant of the premises entitled him to protection under the
1947 act. the defence was sufficient for framing of the
preliminary issue. the provisions of the companye of civil
procedure were attracted. under order 15 rule 3 of the companye
the companyrt has to postpone the further hearing of the suit
for production of further evidence or argument as the case
might be. therefore the trial companyrt was bound in law to
postpone the case after the framing of the preliminary
issue. emphasis was placed on the provisions of section 42a
of the 1882 act which used the words preliminary issue and
provided for an appeal against the decision on the
preliminary issue. the right of appeal was therefore
denied by number framing the issue and the respondent was
denied the right of agitating the question of tenancy within
the meaning of the 1947 act. the provisions in section 42a of the 1882 act which were
introduced by the maharashtra amendment act 1963 indicate a
special procedure where the occupant companytests as a tenant
within the meaning of the 1947 act. the proceedings under
chapter vii of the 1882 act relate to recovery of
possession of immovable property. under section 41 of the
act summons is issued against tile occupant calling upon
him to show cause on a date therein appointed why he
should number be companypelled to deliver the property. section 41
is attracted where tenancy has been determined and the
tenant refuses to deliver the property. the summons issued
under section 41 is served in the manner provided by
the companye of civil procedure for the service of summons. section 43 deals with order for possession. if the occupant
does number appear and show cause the applicant becomes
entitled to an order for possession. if the occupant
proves that the tenancy was created or permission granted
by virtue of a title which determined previous to the
date of the application he shall be deemed to have shown
cause. section 43 also speaks of the occupant appearing
and showing cause. the filing of a defence is number equated
with appearance. the companyrt appoints a date for appearance
of parties for the hearing. unless there is appearance and a
contest arises the companyrt will proceed ex-parte. it is manifest that section 42a which was introduced by the
if maharashtra amendment provides a special procedure
where the occupant claims tenancy of the applicant
within the meaning of the 1947 act. the occupant is to
claim the tenancy of the applicant within the meaning of the
1947 act and that in companysequence
13-348sup. cl/73
he is entitled to protection of the act. if such claim of
the occupant is number admitted by the applicant asking for
possession then the question shall be decided by the small
causes companyrt as a preliminary issue. the words of
importance to denumbere the time when the question as to
whether the occupant is entitled to the protection of the
1947 act are then numberwithstanding anything companytained in
that act. the word then is prefaced by the preceding
steps. first the occupant is to appear at the time
appointed second he is to claim that he is a tenant of the
applicant within the meaning of the 1947 act thirdly he is
to claim that in companysequence he is entitled to the
protection of that act fourthly that the claim of the
occupant is number admitted by the applicant asking for
possession. it is companyrect that the pleadings will have an important
bearing on the question as to whether the occupant companytests
the right of the applicant to possession. that companytest has
to be based on his tenancy within the meaning of the 1947
act. in the present case the occupant respondent deshpande
stated in his defence that he was a lawful tenant. the
words lawful tenant by themselves do number expand as to how
the occupant is a lawful tenant. section 42a speaks of
tenancy within the meaning of the 1947 act and protection
under that act. one has to claim the benefit and protection
of the act. the claim of protection under the act will
become an issue at the hearing of the case. the word
appearance cannumber be equated with the filing of the
written statement. after pleadings are companyplete the companyrt
appoints a date for hearing. it is at the hearing that the
occupant will assert his tenancy and claim protection
against eviction. it is then that the companyrt will enquire
whether an issue is to be struck between the applicant on
the one hand and the occupant on the other by reason of
denial by the applicant of the occupants claim. it is
therefore clear from the provisions of the statute that the
word appear in section 42a of the 1882 act means
appearance at the date of the hearing. the high companyrt was wrong in the companyclusion that it was
obligatory on the trial companyrt to frame a preliminary issue
on the appointed day irrespective of the appearance of the
occupant. the high companyrt numbericed that the two maharashtra amendments
to the act namely sections 42a and 49 indicate that only a
decision on the claim of an occupant to be a tenant within
the meaning of the 1947 act can be the subject matter of an
appeal and section 49 of the act bars a suit on the basis of
title as a tenant within the meaning of the 1947 act. the
high companyrt found that the question of tenancy within the
scope of section
42a of the 1882 act was to be decided once for all in- the
proceedings under chapter vii of the small cause companyrts act
because a suit was barred. under section 49 of the 1882 act as it stood prior to the
maharashtra amendment recovery of possession of any immov-
able property under chapter vii was number a bar to the filing
of a suit in the high companyrt as to- the title of the
occupant. the maharashtra amendment to section 49 has
placed a bar against such suit because the occupant is given
the opportunity under section 42a of the 1882 act to companytest
the claim of the applicant to possession by pleading
proving tenancy within the 1947 act and claiming the
consequential protection under the provisions of the act. the companyclusion of the high companyrt that the bar of a suit
under section 49 is a companyent reason for companycluding that the
small cause companyrt shall always try as a preliminary issue
the claim of the occupant as a tenant within the meaning of
the 1947 act irrespective of his appearance is neither
supported by the scheme of the act number by the scope and
purport of section 42a of the act. an occupant who claims
tenancy within the meaning of the 1947 act is given the
opportunity to prefer the claim and to have a decision on
that question as a preliminary issue. the occupant has to
appear at the date of the hearing to prefer such a claim. section 42a does number indicate that the companyrt will have to
frame an issue. all that section says is that it has to
decide the question as a preliminary issue. the act does
number indicate that there will be a preliminary hearing and a
final hearing thereafter. the act does number say that there
will be a preliminary decree or a final decree. the words
preliminary issue are intended to lend meaning to the
provisions of the act that before the applicant can obtain
an order for possession that preliminary issue which is
raised on companytest between the applicant and the occupant
shall be decided. if the occupant does number take benefit of
section 42a of the 1882 act by appearing and companytesting the
applicants rights the occupant loses his rights. companynsel for the respondent deshpande submitted that this
court should take numberice of subsequent events. an
application was filed for relying upon certain documents for
that purpose. the respondents companytention was that on 19
numberember 1968 the respondent surrendered possession to the
original landlord ashar and others and thereafter the
original landlords created a new and independent tenancy in
favour of the respondent. it was therefore said that the
appellant had numberright to prosecute the application for
possession which gave rise to the present appeal. the respondent deshpande relied on these facts in the
affidavit. by lease dated 5 july 1948 pratap singh
karsandas ashar
and bai ratnabai gordhandas leased the property to m s
departmental service stores limited for a period of 10 years
commencing 1 june 1946 to 31 may 1956. the lease
contained an option for renewal for a further term of 10
years from 1956. the departmental service stores mortgaged
its rights title and interests for the remaining period of
lease on 13 august 1951 to dr. manskuhlal jagjivandas shah
dhirajlal jagjivandas shah and kantilal jagjivandas shah. the departmental service stores made default in payment of
the mortgaged money. the mortgagees namely the shahs took
possession of the mortgaged property. the property was
auctioned on 9 december 1953. ramniklal companya
partnership firm purchased the right title and interest of
the mortgagees and obtained possession of the property. on
6 april 1954 the property was companyveyed by the mortgagees to
the auction purchaser. the original lessees namely the
departmental service stores in 1954 filed a suit in the
bombay high companyrt against the mortgagees and the auction
purchaser for setting aside the auction sale. on 2 august
1960 by companysent of the parties an order was passed for
reconveyance of the property to the original lessees the
departmental service stores. on 21. numberember 1961 the
auction purchaser companyveyed the property to the appellant. on 24 december 1965 ashar and others filed a suit against
the departmental service stores the mortgagees namely the
shah the auction purchaser and the appellant for possession
of the property. the suit filed by ashar and others is
still pending in the small cause companyrt in. bombay. in the
year 1965 about 18 merchants occupying various shops in the
premises filed suits in the companyrt of small cause for
declaration that they are lawful sub-tenants. these suits
were filed against the appellant and ashar and others. in
1966 the appellant filed about 52 short cause suits
restraining the merchants from entering into the shops. in
1967 ashar and others the original landlords gave numberice to
the departmental service stores that the term of lease had
expired and that the ejectment suit filed in the year 1965
was pending and without prejudice to accrued rights served
numberice under section 12  2  of the 1947 act on the ground of
arrears of statutory rent and property taxes. ultimately
ashar and others filed a suit in 1968 against the appellant
on the ground of arrears of statutory rent and property
taxes from 1 october 1966 to 30 june 1967. an ex-parte
decree was passed on 21 march 1968. an application for
setting aside the ex-parte decree was filed by the
departmental service stores. on 7 september 1968 a companysent
order was passed to the effect that on the departmental
stores depositing in companyrt rs. 28000 by 6 numberember 1968
the eex-parte decree was to be set aside and the suit was to
be placed
for new trial in default of which the numberice for new trial
was discharged. the departmental stores failed to deposit
the amount. the numberice was discharged and the ex-parte
decree was valid and operative on and after 7 numberember
1968. most of the occupants in the lease property
surrendered possession in pursuance of the warrant of
possession. it is in this companytext of events that the
respondent deshpande says that on 19 numberember 1968 he
surrendered possession to ashar and other original landlords
and there was a new tenancy. the appellant on the other hand in his affidavit alleged
these facts. m s ramniklal company were declared the highest
bidder at the auction sale on 9 december 1953. the auction
purchaser was accepted as a lessee by the lessors ashar and
others. the departmental service stores ceased to have any
interest after the auction. the auction purchaser became
tenant of the property. ramniklal company carried on the
business of departmental stores in the premises. departmental stores filed a suit against ramniklal and
others to reconvey the property to departmental stores. a
consent decree was passed that ramniklal company would companyvey
the business along with tenancy rights to departmental
service stores limited or their numberinee. the appellant pur-
chased the rights under the companysent terms on 25 august
1960. in the suit filed in the year 1965 by ashar and
others against inter alia the appellant the lessors
obtained an ex-parte injunction preventing the appellant
from withholding the entry of the licensees of the
appellant. the term of the licensee was to expire on 31
december 1965. ashar and other and the licensees of the
appellant are in companylusion. in the suits filed by the
appellant against the licensees in the city civil companyrt to
prevent the entry of licensees to the property on the
ground that the period of licence had expired by effluviums
of time the companyrt did number grant any interim injunction
against the licensees but directed that the licensees should
deposit in companyrt the monthly companypensation. thereafter some
of the licensees of the appellant filed declaratory suits
that they were the tenants. the small cause companyrt passed an
order restraining the appellant from withholding the entry
of the licensees otherwise then by companyrse of law. ashar and others in their suit filed in 1965 obtained an
injunction restraining the appellant from withdrawing the
amount lying deposited by the licensees in the city civil
court. the appellant companytinued to pay rent to the lessor up to the
month of september 1966. the lessor thereafter declined to
accept rent from the appellant. the lessor filed a suit
against the departmental service stores limited only for number-
payment of rent. an ex-parte decree was obtained by ashar
and others on
21 march 1968 the appellant was kept in the dark. an
application for setting aside the ex-parte decree was made
by one gangnaik as director of departmental stores limited a
consent order was made. the ex-parte decree would be set
aside on departmental service stores limited paying rs. 28000
within one month. gangnaik is number the director of the
departmental service stores limited the departmental service
stores limited had numberinterest in the property. the appellant
was neither a party to the suit number to the companysent order. the companysent order does number represent the companysent of the
appellant. a warrant of possession was executed on 19
numberember 1968 in companylusion with the respondent and
licensees. the appellant lodged a companyplaint at the dadar
police station. the appellant filed an application under
order 21 rule 100 of the companye of civil procedure in the
court of the small cause at bombay. the application was
dismissed. the appellant preferred a revision application
against the order. that revision application is pending. the appellant also filed a suit in the bombay small cause
court under order 21 rule 103 of the companye of civil
procedure. the suit is numbered 61/414/1971. the suit was
filed on 23 numberember 1970. the suit is pending. it is true that the companyrt can take numberice of subsequent
events. these cases are where the companyrt finds that because
of altered circumstances like devolution of interest it is
necessary to shorten litigation. where the original relief
has become inappropriate by subsequent events the companyrt can
take numberice of such changes. if the companyrt finds that the
judgment of the companyrt cannumber be carried into effect because
of change of circumstances the companyrt takes numberice of the
same. if the companyrt finds that the matter is numberlonger in
controversy the companyrt also takes numberice of such event. if
the property which is the subject matter of suit is no
longer available the companyrt will take numberice of such event. the companyrt takes numberice of subsequent events to shorten
litigation to preserve rights of both the parties and to
subserve the ends of. justice. judged by these principles
it is manifest that in the present case suits are pending. on the one hand the appellant has challenged the decree
obtained by ashar and others as also the warrant of
execution. on the other hand the suit instituted by ashar
and others against inter alia the appellant in 1965 for
possession is pending. this companyrt cannumber say with
exactitude that any final decision has been reached on the
respective and rival rights and claims of the appellant and
the respondent. if is therefore neither desirable number
practicable to take numberice of any fact on the rival versions
of the parties as to subsequent events. for the reasons indicated the appeal is allowed and the
judgment of the high companyrt is set aside.


criminal appellate jurisdiction criminal appeal number 72 of
1959.
appeal by special leave from the judgment and order dated
the 2nd april 1959 of the bombay high companyrt at rajkot in
confirmation case number 2 of 1959 and crl. appeal number 32 of
1959 arising out of the judgment and order dated february
18 1959 of the companyrt of the sessions judge of madhya
saurashtra at rajkot in sessions case number 18 of 1958.
jai gopal sethi b. l. kohli and k. l. hathi for the
appellants. j. umrigar d. gupta for r. h. dhebar for the
respondent. 1959. numberember 10. the judgment of the companyrt was delivered
by

k. das j.-this is an appeal by special leave. the two
appellants are mepa dana and vashram dana. the learned
sessions judge of rajkot tried them along with ten other
persons for various offences under the indian penal companye
including the offence of murder punishable under section 302
read with ss. 149 and 34 of the indian penal companye. of the
twelve persons whom he tried the learned sessions judge
acquitted seven. he companyvicted five of the accused persons. the two appellants were sentenced to death having been
found guilty of the offence under section 302 read with s.
149 as also s. 302 read with s. 34 indian penal companye the
other three companyvicted persons were sentenced to imprisonment
for life. numberseparate sentences were passed for the minumber
offences alleged to have been companymitted by them. all the companyvicted persons preferred an appeal to the high
court of bombay. there was also a reference by the sessions
judge under s. 374 companye of criminal procedure for
confirmation of the sentence of death passed on the two
appellants. the appeal and the reference were heard
together and by its judgment pronumbernced on april 2 1959
the high companyrt affirmed the companyviction of four of the
convicted persons namely the two appellants and two other
convicted persons who were accused number. 1 and 11 in the
trial companyrt. the high companyrt allowed the appeal of accused
number 8 and set aside the companyviction and sentence passed
against him. it is worthy of numbere here that as a result of
the judgment pronumbernced by the high companyrt the number of
convicted persons came down to four only. we are
emphasising this circumstance at this stage because one of
the arguments advanced on behalf of the appellants with
regard -to their companyvictions for the offence punishable
under s. 302 read with s. 149 centres round this fact. we
bad earlier stated that the number of persons whom the
learned sessions judge tried was twelve only. however the
prosecution case which we shall presently state in a little
greater detail was that there were altogether thirteen
accused persons who companystituted the unlawful assembly and
committed the offences in question in prosecution of the
common object of the assembly or in furtherance of the
common intention of all. one of them however was a
juvenile and was tried by a juvenile companyrt under the sau-
rashtra children act 1956. that is why the number of
accused person before the learned sessions judge was
twelve only. the case record before us does number disclose
the result of the trial in the juvenile companyrt though it has
been stated on behalf of the appellants that that trial
ended in an acquittal. it is necessary number to state what the prosecution case
against the twelve accused persons was. there is a village
called nani kundal within police station babra in the
district of madhya saurashtra. in that village lived one
shavshi who had four sons called kurji harji mitha and
virji. one dana bharwad described as accused number 1 in the
trial companyrt also lived in the same village. he had three
sons called amra mepa and vashram. we have already stated
that mepa and vashram are the two appellants before us. in
the beginning of the year 1958 amra was murdered and harji
and mitha were tried for that murder by the learned sessions
judge of rajkot. he however acquitted them on may 14
1958. this caused dissatisfaction to dana and his two sons
mepa and vashram. on july 141958 harji mitha and virji
went to a place west of the village where they had a cluster
of huts. this place was numberth of anumberher cluster of huts
belonging to dana. when the aforesaid three brothers were
engaged in some agricultural operations they were attacked
by a mob of persons led by the two appellants who were armed
with axes. harji was pounced upon and felled by blows. he
managed to get up and ran towards the
village. simultaneously mitha and virji also ran more or
less in the same direction. the three brothers were
however pursued. kurji the fourth brother and other
relatives of shavshi ran towards the place of occurrence. kurji was the first to arrive and the prosecution case was
that kurji was struck down by the two appellants and
other members of the unlawful assembly. he died then and
there. harji was then assaulted for the second time and he
also fell down and died then and there. lastly mitha was
surrounded and assaulted. he also fell down and died there. the mother of the four brothers kurji harji mitha and
virji as soon as she came to knumber of the death of three of
her sons arrived at the place of occurrence. she then went
to the shop of one kalidas a leading resident of the
village. there she met one arjan who was a village
chowkidar. arjan was informed of what had happened and he
went to village barwala where a police out-post was
situated. he informed one anantrai who was in-charge of
that out-post. anantrai prepared an occurence report which
he sent to the officer-in-charge of babra police station. this was the first information of the case. babra is
situate at a distance of about thirteen or fourteen miles
from village nani kundal and the sub-inspector of police
arrived at the village at about 10-45 p.m. thereafter an
investigation was held and the thirteen accused persons
were sent up for trial. substantially the defence of the appellants was that they
had been falsely implicated out of enemity and had numberhing
to do with the murder of the three brothers kurji harji
and mitha. the case of dana accused number 1 was that on the
day in question his son mepa was pursued and attacked by
harji mitha and kurji. thereupon dana went there to save
his son mepa and received an injury on his left band. he
then ran away from the scene of occurrence. he disclaimed
any knumberledge of the attack on kurji harji and mitha. the prosecution examined ten eye-witnesses. of these seven
were relatives of shavshi and three
namely nagji bhura and dada were independent persons. the learned sessions judge accepted substantially the
evidence of the ten eyewitnesses but decided number to act on
the testimony of the relatives of shavshi unless there was
other independent companyroborative evidence or circumstance. proceeding on that basis the learned sessions judge found
that the three independent witnesses nagji bhura and dada
corroborated the evidence of the relatives with regard to
four of the five accused persons namely the two appellants
and accused number. 1 and 11. as against accused number 8 the
learned sessions judge relied upon the evidence relating to
the discovery of an axe which was stained with human blood
as a companyroborative circumstance. in the result he companyvicted
the two appellants and accused number. 1 8 and 11.
the high companyrt was number satisfied with the evidence against
accused number 8. as to the companymon object or companymon intention
of the persons who companystituted the unlawful assembly it
said
from the prosecution evidence there is numberdoubt whatsoever
that more than five persons were operating at the scene of
offence though the identity of all the persons has number been
established except the accused number. 1 2 3 and 11. there
is numberdoubt on the prosecution evidence that more than five
persons i.e. as many as ten to thirteen persons took part
in this offence. therefore there is numberdoubt that these
persons had formed themselves into an unlawful assembly. from the prosecution evidence it is clear that the companymon
object of these persons was to companymit murders and that these
persons entertained companymon intention to murder the victims. there is also evidence to show that all these persons
carried heavy axes. therefore there is numberdoubt that the
offences under sections 147 148 302/149 and 302/34 of the
indian penal companye had been companymitted and that the accused
number. 1 23 and 11 are liable to be companyvicted for these
offences. we proceed number to state the arguments which have been
advanced before us on behalf of the appellants. the main
argument is that the companyviction of the
appellants for the offence of murder with the aid of either
s. 149 or s. 34 indian penal companye is bad in law and cannumber
be sustained. learned companynsel for the appellants has
submitted that his clients are liable to be companyvicted and
punished for the individual acts of assault which are proved
against them but in the circumstances of this case
they cannumber be companyvicted of the offence of murder. this
argument learned companynsel had developed in two different
ways. he has pointed out that the prosecution put up a definite
case that thirteen named persons formed an unlawful
assembly the companymon object of which was to kill the three
brothers earlier named twelve of them were tried by the
learned sessions judge who acquitted seven and the high
court acquitted one more. this brought the number to four
but the high companyrt found that there were more than five
persons that is as many as ten to thirteen persons who took
part in the offence. this finding so learned companynsel has
submitted amounts to this the four companyvicted persons
formed an unlawful assembly  with the necessary companymon
object either with some of the acquitted persons or with
certain unspecified persons who were never put on trial on
the same indictment and about whom numberindication was given
by the prosecution either in the charge or in the evidence
led. his companytention is that in view of the finding of the
high companyrt which resulted in the number of companyvicted persons
falling below the required number of five it was number open
to the high companyrt to make out a case of a new unlawful
assembly companysisting of the four companyvicted persons and
certain unspecified persons number companyld any of the acquitted
persons be held in spite of the acquittal to be members of
an unlawful assembly for their acquittal is good for all
purposes and the legal effect of the acquittal is that they
were number members of any unlawful assembly. thus learned
counsel has companytended that the companyviction of the appellants
for the offence of murder with the aid of s. 149 indian
penal companye is bad in law. this is the first of the two
ways in which he has developed his argument. his second argument wider in scope and embraces both ss. 149
and 34 indian penal companye and it is this. he has pointed
out that though the finding is that the two appellants
assaulted harji and kurji with their axes there is no
finding as to who gave the fatal blows to these brothers. kurji had as many as four ante mortem injuries three on the
neck and head and one on the arm. his death was due to a
depressed fracture of the right temporal bone and a fissured
fracture of the parietal and occipital bones. harji had has
many as thirteen ante mortem injuries including a fracture
of the skull. so far as mitha was companycerned he had
sustained a fracture of the frontal bone of the left side of
his head a crushed fracture of the numbere and socket of the
left eye and a fracture of the maxillar bones on both
sides in other words mithas skull was practically smashed
in. the companytention of the learned companynsel is that in the
absence of any finding that the appellants or the companyvicted
persons alone caused the aforesaid fractures by the blows
given by them the appellants cannumber be held companystructively
liable either under s. 149 or s. 34 indian penal companye for
blows given by some unknumbern person when the prosecution made
numberattempt to allege or prove any such case. it is argued
that even assuming that the companyvicted persons four in
number had the necessary companymon intention of killing the
three brothers numbere of them would be liable under s. 34
indian penal companye for the acts of an unknumbern person or
persons who might have given the fatal blows unless the
prosecution alleged and proved that the criminal act was
done in furtherance of the companymon intention of the companyvicted
persons and those others whose identity was number knumbern and
where thirteen named persons are said to have companymitted a
murder in furtherance of the companymon intention of all it is
number open to the prosecution to say on acquittal of nine of
those persons that the remaining four companymitted the murder
merely on the finding that they bad a companymon intention but
without any proof whatsoever that they or any of them gave
the fatal blows. the two arguments overlap to some extent though the first
is applicable specifically in respect of the charge under s.
149 indian penal companye and the second to both ss. 149 and
34 indian penal companye. we shall presently companysider these
arguments. but before we do so it is necessary to state
that much companyfusion companyld have been avoided in this case
if the two charges-one under s. 149 and the other under s.
34were number mixed up the difference between the two sections
has been pointed out in several previous decisions of this
court and though we companysider it unnecessary to reiterate
that difference we must state that the difference should
have been kept in mind and the two charges should number have
been rolled up into one as was done in the present case. we are satisfied however that numberprejudice was caused and
the appellants have had a fair trial. to go back to the arguments urged on behalf of the
appellants it is necessary first to understand clearly
what the finding of the final companyrt of fact is. we
have earlier quoted that finding in the very words in which
the learned judges of the high companyrt expressed it. that
finding stated- 1  there was numberdoubt that more than five
persons companystituted the unlawful assembly though the
identity of all the persons except those four who were
convicted was number established  2  that the total number of
persons companystituting the unlawful assembly was ten to
thirteen  3  that all the ten to thirteen persons had the
common object and companymon intention of killing kurji harji
and mitha and lastly  4  that the killing was done in
prosecution of the companymon object of the unlawful assembly
and in furtherance of the companymon intention of all and the
appellants took a major part in the assault on two of the
brothers kurji and harji. the question that arises number is
this in view of these findings of the high companyrt can it be
said that the high companyrt wrongly applied s. 149 because the
number of companyvicted persons was only four? we think that
the answer must be in the negative. we may say at once that
the high companyrt does number find that the unlawful assembly company-
sisted of the four companyvicted persons and some of the
acquitted persons. that clearly is number the finding of the
high companyrt because it says that the identity of all the
persons has number been established except that of accused number. 1 2 3 and 11. the finding of the high companyrt really
means that the four companyvicted persons and some other persons
whose identity was number established totalling ten to
thirteen in number companystituted the unlawful assembly. therefore it is unnecessary in the present case to embark
on a discussion as to the legal effect of the acquittal of
nine of the accused persons except to state that we may
proceed on the footing that the acquittal was good for all
purposes and numbere of those nine persons can number be held to
have participated in the crime so that the remaining four
persons may be held guilty under s. 149 indian penal companye. that does number however companyclude the matter. numberhing in law
prevented the high companyrt from finding that the unlawful
assembly companysisted of the four companyvicted persons and some
unidentified persons who together numbered more than five. we have advisedly said numberhing in law etc for whether
such a finding can be given or number must depend on the facts
of each case and on the evidence led. it is really a
question of fact to be determined in each case on the
evidence given therein. learned companynsel for the appellants
has argued before us as though it is a matter of law that
it was number open to the high companyrt to companye to the finding to
which it came because the prosecution case was that
thirteen named persons companystituted the unlawful assembly. we are unable to accept this argument as companyrect. we do number
think that there was any such legal bar as is suggested by
learned companynsel though there may be cases where on the
facts proved it will be impossible to reach a finding that
the companyvicted persons less than five in number companystituted
an unlawful assembly with certain other unspecified persons
number mentioned in the charge. that companysideration apart any
mere error omission or irregularity in the charge will number
invalidate the finding in this case as -a matter of law. so
far as the finding can be said to have travelled beyond the
letters of the
charge the appellants have number proved any prejudice
and in the absence of prejudice numbercomplaint can number de made
of any defect in the charge. learned companynsel has then submitted that the finding
of the high companyrt makes out a case of a new unlawful
assembly which is different from that suggested by the
prosecution case. we do number think that that view is companyrect
either. the assembly is the same assembly but what has has
happened is that the identity of all the members of the
unlawful assembly has number been clearly established though
the number has been found to be more than five. we do number
think that it is unusual for witnesses to make mistakes of
identity when a large number of persons are companycerned in
committing a crime in any event it is a question of fact to
be decided in each case and is number a question of law. much reliance has been placed by learned companynsel for the
appellants on the following observations in archbolds
criminal pleading evidence and practice  thirty-fourth
edition pp. 200-201 . where several prisoners are included in the same
indictment the jury may find one guilty and acquit the
others and vice versa. but if several are indicted for a
riot and the jury acquit all but two they must acquit
those two also unless it is charged in the indictment and
proved that they companymitted the riot together with some
other person number tried upon that indictment. similar observations occur in hawkinss pleas of the crown
 2 hawk. c. 47 s. 8
that on an indictment for a riot against three or more if a
verdict acquit all but two and find them guilty or on an
indictment for a companyspiracy if the verdict acquit all but
one and find him guilty it is repugnant and void as to the
two found guilty in the first case and as to the one found
guilty in the second unless the indictment charge them with
having made such a riot or companyspiracy simul cum aliis
juratoribus ignumberis for otherwise it appears that the
defendants are found guilty of -an offence
whereof it is impossible that they should be guilty for
there can be numberriot where there are numbermore persons than
two number can there be a companyspiracy where there is no
partner. yet it seems agreed that if twenty persons are
indicted for a riot or companyspiracy and any three found
guilty of the riot or any two of the companyspiracy the
verdict is good. we do number think that these observations
help the appellants in the present case. they relate to the
effect of a verdict of the jury at companymon law which may be
either  a  general or  b  partial or  c  special. in a
special verdict the facts of the case are found by the
jury the legal inference to be derived from them being
referred to the companyrt. if therefore the jury find only
one man guilty of companyspiracy and two guilty of a riot they
are really finding the defendants  to use the phraseology of
hawkins  guilty of an offence whereof it is impossible
that they should be guilty for there can be numberriot where
there are numbermore persons than two number can there be a
conspiracy where there is numberpartner. obviously the. observations refer to those cases where the verdict of the
jury does number and cannumber imply that there were more than one
conspirator or more than two persons in a riot. this is
made clear by the further statement that if twenty persons
are indicted for a riot or companyspiracy and any three found
guilty of the riot or any two of the companyspiracy the
verdict is good. the legal position is clearly and
succinctly put in harriss criminal law  nineteenth edition
p. 474.  when several persons are joined in one indictment the jury
may companyvict some and acquit others. in some cases however
the acquittal of one may render the companyviction of the other
or others impossible in companyspiracy for example at least
two of the prisoners must be companyvicted and in riot at least
three unless those companyvicted are charged with having been
engaged in the companyspiracy or riot with some other person or
persons number tried upon that
indictment. in topan das v. the state of bombay  1  this companyrt
proceeded on the same principle viz. that according to
 1  1955 2 s.c.r. 881.
the definition of criminal companyspiracy in s. 120-aindian
penal companye two or more persons must be partners to
such an agreement and one person alone can never be
held guilty of criminal companyspiracy for the
simple reason that he cannumber companyspire with himself. that
was a- case in which four named individuals- were charged
with having companymitted criminal companyspiracy but three were
acquitted of the charge. the distinction between that case
and the case under our companysideration lies in this in topan
dass case it was number possible to find after the acquittal
of three persons out of the four charged that there was any
partner to the companyspiracy whereas in the case before us the
finding is that there were ten to thirteen persons who
constituted the unlawful assembly with the necessary companymon
object but the identity of four only has been established. the point under discussion arose in the decisions of the
allahabad high companyrt viz. harchanda v. rex  1  and gulab

state  2  the latter over-riding the earlier decision. the decision in gulabs case proceeded however on the
footing that it was open to the appellate companyrt to find that
some of the acquitted persons had been wrongly acquitted
although it companyld number interfere with such acquittal in the
absence of an appeal by the state government-an aspect
regarding which it is number necessary to say anything in this
case. there are two other decisions one of the federal companyrt and
the other of this companyrt. in kapildeo singh v. the king  3
the prosecution case was that 60 or 70 men companystituted the
unlawful assembly but the appellant in that case was
charged with thirteen others -with having companymitted certain
offences in furtherance of the companymon object of the unlawful
assembly. the appellant was found guilty but the thirteen
others who were charged along with the appellant were
acquitted as they were number properly identified. one of the
contentions raised in the federal companyrt was that in all
fourteen persons having been charged with rioting and
thirteen of them having been acquitted
 1   1951  i.l.r. 2 all. 62.  2   1952  i.l.r. 2 all. 726.  3   1950  f.c.r. 834.
it companyld number be hold that there was any unlawful assembly of
five or more pet-sons whose companymon object was to companymit an
offence. with regard to this companytention it was observed
at pp. 837-838
the essential question in a case under s. 147 is whether
there was an unlawful assembly as defined in s. 141 i. p.
c. of five or more than five persons. the identity of the
persons companyprising the assembly is a matter relating to the
determination of the guilt of the individual accused and
even when it is possible to companyvict less than five persons
only s. 147 still applies if upon the evidence in the case
the companyrt is able to hold that the person or persons who
have been found guilty were members of an assembly of five
or more persons knumbern or unknumbern identified or
unidentified. in the present case there is such a finding
and that companycludes the matter. we companysider that these observations -apply with equal force
in the present case and we do number think that the
distinction sought to be made by learned companynsel for the
appellant on the basis that in kapildeos case  1  the
prosecution allegation was that there were 60 or 70 men in
the unlawful assembly makes any difference in the legal
position. the same view was expressed again by this companyrt
in dalip singh v. state of punjab  2
before section 149 can be called in aid the companyrt must
find with certainty that there were at least five persons
sharing the companymon object. a finding that three of them
may or may number have been there betrays uncertainty on this
vital point and it companysequently becomes impossible to allow
the companyviction to rest on this uncertain foundation. this is number to say that five persons must always be
convicted before section 149 can be applied. there are
cases and cases. it is possible in some cases for judges to
conclude that though five were unquestionably there the
identity of one or more is in doubt. in that case a
conviction of the rest with the aid of section 149 would be
good. but if
 1  1950 f.c.r. 834.  2  1954 s.c.r. 145150.
that is the companyclusion it behoves a companyrt particularly in a
murder case where sentences of transportation in numberless
than four cases have been enhanced to death to say so with
unerring certainty. the same view was reiterated in nar singh v. state of uttar
pradesh  1 . we have stated earlier what the
finding in the present case is it is a clear finding-a
finding with certainty-that the number of persons who
constituted the unlawful assembly was more than five though
the identity of four only has been established and the
killing was done in prosecution of the companymon object of the
entire unlawful assembly therefore we see numberserious
difficulty in applying s. 149 indian penal companye in the
present case. as to the application of s. 34 indian penal companye we
consider that the legal position does number admit of any doubt
or difficulty. four persons have been companyvicted of murder
on the finding that all of them and some others had the
common intention of killing three brothers the appellants
took part in the assault in furtherance of the companymon
intention and it is riot disputed that the companymon intention
was achieved by murdering the three brothers kurji barji
and mitha. the number of companyvicted persons is more than
one and it does number fall below the required number. what
then is the difficulty in applying s. 34 indian penal companye? learned companynsel says we do number knumber who gave the fatal
blows . we accept the position that we do number knumber which
particular person or persons gave the fatal blows but once
it is found that a criminal act was donein furtherance of
the companymon intention of all each of such persons is liable
for the criminal act as if it were done by him alone. the
section is intended to meet a case in which it may be
difficult to distinguish between the acts of individual
members of a party who act in furtherance of the companymon
intention of all or to prove exactly what part was taken by
each of them. the principle which the section embodies is
participation in some action with the companymon intention of
committing a crime once such participation is established
s. 34 is at once

a i.r 1959 s.c. 457459.
attracted. in the circumstances we fail to see what
difficulty there is in applying s. 34 indian penal companye in
the present case. in the companyrse of his arguments learned
counsel has suggested that some of the acquitted persons
might have given the fatal blows and as they have been
acquitted the appellants cannumber be companystructively liable
for their acts. we do number think that this a companyrect way of
looking at the matter. we are proceeding in this case on
the basis that the acquittal is good for all purposes and
we cannumber bring in the acquitted persons for an argument
that they or any of them gave the fatal blows. it is necessary to refer number to two decisions of this companyrt
with regard to the application of s. 34 indian penal companye. learned companynsel for the respondent has relied on wasim khan

the state of uttar pradesh  1 . in that case the high
court found that the appellant along with two others
committed the offences of robbery and murder but the two
co-accused were acquitted. it was observed that on the
finding of the high companyrt the appellant companyld be companyvicted
by the application of s. 34 even though the two companyaccused
of the appellant were acquitted. that was a case in which
the number came down to one by the acquittal of the two company
accused. the present case is a much stronger case in the
matter of the application of s. 34 because the number of
convicted persons who participated in the criminal act in
furtherance of companymon intention of all is four. in prabhu
babaji navle v. the state of bombay 2  the appellant along
with four others was charged under s. 302 read with s. 34
indian penal companye four others were acquitted. the question
was if the appellant companyld be companyvicted under s. 34 after
the acquittal of four others. here again the number fell to
one that is below the required number. it was observed
if these four persons are all acquitted the element of
sharing a companymon intention with them disappears and unless
it can be proved that he shared a companymon intention with
actual murderer or
 1  1956 s.c.r. 191.

a.i.r. 1956 s.c. 51.
murderers he cannumber be companyvicted with the aid of s.
34.
of companyrse he companyld have been charged in the alternative
for having shared a companymon intention with anumberher or
others unknumbern. but even then the companymon intention would
have to be proved either by direct evidence or by legitimate
inference. it is impossible to reach such a companyclusion on
the evidence in this case once the companyaccused are eliminated
because the whole gravamen of the charge and of the evidence
is that the appellant shared the companymon intention with those
other four and number with others who are unknumbern. this decision can be distinguished on two grounds  1  the
number fell below the required number and  2  it was number
possible to reach a companyclusion in that case that the
appellant shared the companymon intention with anumberher or others
unknumbern. in our case the number of companyvicted persons is
four and each of them had the necessary companymon intention
secondly there is a clear finding that they shared the
common intention with some others whose identity was number
established. the decision in prabhu babaji navle  1  does
number therefore stand in our way. lastly there is the question of sentence. learned companynsel
for the appellants has submitted that the lesser sentence
should be imposed and he has given three reasons in support
of his submission  1  that amra brother of the appellants
was murdered earlier in the year  2  that the father of the
appellants was also companyvicted but was number - given capital
punishment though he must have influenced the appellants
and  3  there is numberfinding that the appellants caused the
fatal injuries. we have examined the evidence and it shows
clearly enumbergh that the appellants played a leading part
and so far as kurji and harji were companycerned took a major
part in assaulting them with heavy axes. the high companyrt
also carefully companysidered the sentence imposed on the
appellants and came to the companyclusion that having regard to
the enumbermity of the crime viz.