criminal appellate jurisdiction criminal appeal number 29 of
1956.
appeal from the judgment and order dated august 24 1955 of
the calcutta high companyrt in criminal appeal number 196 of 1954
arising out of the judgment and order dated june 7 1954 of
the companyrt of the judge special companyrt burdwan in special
court case number 10 of 1952.

c. issacs and s. n. mukherjee for the appellant. sen and p. k. bose for the respondent. 1958. september 11. the judgment of the companyrt was delivered
by
kapur j.-this is an appeal by leave of the high companyrt of
calcutta against the judgment and order of that companyrt
dismissing the appellants appeal against the order of
conviction by the special companyrt of burdwan for an offence
under s. 165-a indian penal companye and six months rigorous
imprisonment. the facts leading to this appeal are that one istipada ghosh
and his son were being tried in the companyrt of an assistant
sessions judge burdwan with a jury of five. during the
course of the trial the appellant approached one of the
jurors baidya nath mukherjee and offered him illegal
gratification as an inducement for giving a verdict
favourable to ghoslies. on the morning of september 6
1952 the juror narrated these facts to the police and
thereupon the officer in charge sent a sub-inspector to
arrest the appellant if he offered the bribe. after a
little while the appellant came to the appointed place and
offered rs. 40 in four 10 rupee numberes to the juror and while
he was trying to pass those numberes to the juror the police
officer arrested the appellant. the first information
report for an offence under ss. 161/116 indian penal companye
was made soon after. and after investigation a report
1278
was made by the police officer in charge burdwan police
station which resulted in the case being sent to the special
judge burdwan. on numberember 27 1952 the government issued
the following numberification number 6603j under s. 4 2  of the
west bengal criminal law amendment  special companyrts  act
1949  w. b. xxi of 1949
in exercise of the power companyferred by sub-section  2  of
section 4 of the west -bengal criminal law amendment
 special companyrts  act 1949  west bengal act xxi of 1949
the governumber is pleased to distribute to the burdwan special
court companystituted by numberification number 4632j dated the 22nd
august 1952 under section 2 of the said act the following
cases involving offences specified in the schedule to the
said act to be tried by the said special companyrt-

the state versus bhajhari mondal son of bhuson chandra
mondal of katwa station bazar police station katwa district
burdwan tinder sections 161/116 of the indian penal companye. this numberification shows that the offence charged against the
appellant was one under ss. 161/116 of the indian penal
code. the order sheet of the special companyrt shows that the records
of the case state v. b. c. mondal under ss. 161/116 indian
penal companye were received by the special judge on december
23 1952 and the special companyrt took companynizance of the case
the appellant was summoned for appearance on january 22
1953 and he did appear on that day. on december 21 1953
after several adjournments the hearing of the case was fixed
for january 29 1954 on which date the examination of
witnesses companymenced. on february 10 1954 a charge under
s. 165a indian penal companye was framed by the special judge. the trial ended on june 7 1954 and the appellant was
convicted under s. 165a of the indian penal companye and
sentenced to six months rigorous imprisonment. against
this order of companyviction the appellant took an appeal to the
high companyrt of calcutta which was dismissed. it held that
the appel-
1279
lant had rightly been companyvicted under s. 165a and that the
special companyrt had jurisdiction to try the offence under that
section from july 28 1952 to may 9 1953 under s. 7 of
the central act  xlvi of 1952  and from may 9 1953 under
the west bengal act  w. b. xv of 1953 . it also held that
any defect in the taking of companynizance was curable under
s. 529  e  of the criminal procedure companye and that as a
matter of fact the special judge took companynizance under s.
165a and number under ss. 161/116 indian penal companye. on
december 16 1955 the high companyrt granted leave to appeal to
this companyrt. companynsel for the appellant has number companytested the appeal on
any question of fact but has companyfined his arguments to the
question of jurisdiction. he companytended that the special
judge had numberjurisdiction to try the case as  1  at the time
he took companynizance of the case s. 165a indian penal companye
was number an offence specified in the schedule of west bengal
act xxi of 1949  2  the case distributed to him was one
under ss. 161/116 an offence which numberlonger existed in the
indian penal companye  3  the special judge was exercising
jurisdiction under the west bengal act  w. b. xxi of 1949
and number under the central act  xlvi of 1952  as numberspecial
judges were appointed by the state government under that
act  4  the appellant companyld number be tried under the west
bengal act xv of 1953 because there was numberdistribution of a
case against him under s. 165a indian penal companye. in order
to decide these matters it is necessary to set out the dates
on which the various statutes came into force and to see
what provisions were made therein. on march 11 1947
prevention of companyruption act  act 11 of 1947  was enacted by
the central legislature. the west bengal legislature
enacted the west bengal criminal law amendment act of 1949

b. xxi of 1949  which received the assent of the
governumber-general on june 23 1949. its preamble shows the
objects of the act to be more speedy trial and more
effective punishment of certain offences. by s. 2 of this
act special companyrts were set up in west bengal which under
s. 3 were to be presided over by special
1280
judges. section 4 provided for allotment of cases for trial
to the various special judges and also authorised the
provincial government to transfer any case from one special
judge to anumberher and to make modifications in the
description of cases  whether in the name of the accused or
in the charges preferred or in any other manner  as may be
considered necessary. the special judge bad jurisdiction to
try the cases for the time being allotted to him under s. 4
 1  in respect of such of the charges for the offences
specified in the schedule as may be preferred against the
accused. all cases pending before any companyrt or before any
other special judge were deemed to be transferred to the
special judge to whom they were allotted. the special judge
when trying a case allotted to him companyld also try any
offence whether specified in the schedule or number with which
an accused companyld be charged at the same trial. by s. 5 the
special judge companyld take companynizance of a case without the
case being companymitted and was to follow the procedure of
warrant cases and the companyrt of the special judge was deemed
to be a companyrt of session trying without a jury. by s. 8
rules of evidence were amended in certain particulars. sec-
tion 9 provided for enhanced punishment. by s. the
provisions of the prevention of companyruption act were made
applicable. the schedule to the act enumerates the offences
triable by a special judge the relevant items of which
were

an offence punishable under ss. 161 162 163 or s.
165 of the indian penal companye. any companyspiracy to companymit or any attempt to companymit or
any abetment of any of the offences specified in items 1 to
7 . on july 28 1952 the central legislature enacted the
criminal law amendment act  act xlvi of 1952  by s. 3 of
which an offence of abetment s. 165a-with an enhanced
punishment was inserted. s. 165a. whoever abets any offence punishable under
section 161 or section 165 whether or number that
1281
offence is companymitted in companysequence of the abetment shall
be punished with imprisonment of either description for a
term which may extend to three years or with fine or with
both . by s. 6 the state government were authorised by numberification
to appoint special judges for various areas to try the
following offences
 a  an offence punishable under section 161 section 165
or section 165a of the indian penal companye  act xlv of 1860
or subsection  2  of section 5 of the prevention of
corruption act  ii of 1947
 b  any companyspiracy to companymit or any attempt to companymit or
any abetment of any of the offences specified in clause
 a
by s. 7 exclusive jurisdiction was companyferred on special
judges. the effect of this enactment was the insertion in
the penal companye of an offence 165a and the creation of
special judges to be appointed by the state. on august 12
1952 the central legislature passed anumberher act the
prevention of companyruption  second amendment  act  59 of
1952  s. 3 of which changes the rules of evidence in regard
to presumption and onus by adding sub-s. 2 to s. 4 of the
principal act by which it was provided
where in any trial of an offence punishable under section
165a of the indian penal companye  act xlv of 1860  it is proved
that any gratification  other than legal remuneration  or
any valuable thing has been given or offered to be given or
attempted to be given by an accused person it shall be
presumed unless the companytrary is proved that he gave or
offered to give or attempted to give that gratification or
that valuable thing as the case may be as a motive or
reward such as is mentioned in section 161 of the indian
penal companye or as the case may be without companysideration or
for a companysideration which he knumbers to be inadequate . on july 30 1952 an act to amend the west bengal act xxi
of 1949 the west bengal criminal law amendment  special
court amending act   w. b. xii of 1952  received the assent
of the president and came into force. section 3 of this act
substituted a new
s. 2 in place of s. 2 of the west bengal act  w. b. xxi
1282
of 1949 . this substituted section authorised the state
government to companystitute special companyrts and to appoint
special judges to preside over such companyrts which had
jurisdiction throughout west bengal. by s. 5 the following
was substituted in place of s. 4 of the west bengal act xxi
of 1949

numberwithstanding anything companytained in the companye of
criminal procedure 1898  act v of 1898  or in any other
law the offences specified in the schedule shall be triable
by special companyrts only
provided that when trying any case a special companyrt may also
try any offence other than an offence specified in the
schedule with which the accused may under the companye of
criminal procedure 1898 be charged at the same trial. the distribution amongst special companyrts of cases
involving offences specified in the schedule to be tried by
them shall be made by the state government . the schedule under the west bengal act  w.b. xxi of 1949
was also amended by the insertion of s. 164 indian penal
code only. the west bengal act xxi of 1949 was further
amended by the west bengal criminal law amendment  special
courts  amending act 1953  act xv of 1953 . it received
the assent of the president and came into force on may 9
1953. this act added s. 165a indian penal companye in item number
1 of the schedule of the 1949 west bengal act. the result of these various enactments central as well as
state was the creation of special companyrts to try offences
which were specified in the case of west bengal  w. b. xxi
of 1949  in the schedule and in the case of central act in
the body of the act itself the west bengal act  w. b. xxi
of 1949  created special judges to try cases involving
offences specified in the schedule and allotted to them by
the state government alone. under the central act  xlvi of
1952  also the state government was authorised to appoint
special judges and the offences specified in the act were
triable by such judges as stated in s. 7 2  of the act. the
procedure to be followed by the
1283
special judges was that prescribed for the trial of warrant
cases. therefore the jurisdiction of special judges
appointed under this state enactment to try cases relating
to offences specified in the schedule arose only when they
were allotted to them. by the west bengal amending act of
1952  w. b. xii of 1952  in place of special judges the
words special companyrts were- substituted and two companyditions
necessary for companyferring jurisdiction on such companyrts were
 1  cases to be tried related to offences specified in the
schedule and  2  the state government had to make the
distribution of such cases to the various special companyrts. therefore numberspecial companyrt had jurisdiction to try a case
unless it was for offences specified in the schedule and the
state government distributed it to the special companyrt. the numberification in the present case specified the name of
the accused the offence for which he was to be tried as one
under s. 161/116 indian penal companye and the case was
distributed to the special companyrt burdwan for trial. on the
date of the numberification s. 161 and abetment of s. 161 were
offences specified in the schedule but as a result of the
amendment by the criminal law amendment act 1952  xlvl of
1952  s. 165a had been inserted in the companye providing for
punishment for abetment of offences mentioned in ss. 161 or

section 165a created a distinct and separate offence
and therefore abetment of an offence under s. 161 was no
longer an offence under s. 161/ 116 of the companye. section
165a was number included in the schedule to the west bengal act

b. xxi of 1949 . companynsel for the state companytended that
this section although number specifically mentioned was all the
time specified in and must be deemed to have been specified
in the schedule to the west bengal act  w. b. xxi of 1949
because item 8 specifically mentioned abetment of offences
in items i to 7 and that s. 165a only prescribes punishment
for abetment of offences under ss. 161 or 165 and cannumber be
called a new or a different offence. section 165a is number
merely a restatement of the offence of abetment under s. 116
of the companye. it
1284
also companyprises abetment under s. 109 of the companye and
provides an enhanced penalty of three years imprisonment
instead of 1/4th of three years imposeable under s. 116. it
further attracts the application of s. 4  2  of the
prevention of companyruption act  11 of 1947  as subsequently
amended. it cannumber be said therefore that merely because
the abetment of an offence under s. 161 was specified in the
schedule of the west bengal act of 1949 s. 165a which did
number then exist in the penal companye must be deemed to have
been specified therein. it is significant that the west
bengal act was further amended on may 9 1953 by act xv of
1953 in order to include s. 165a in the schedule. it appears therefore that under the numberification the case
distributed to the special companyrt for the appellants trial
was for a number-existing offence because when the special
judge took companynizance of the case there was numbersuch offence
as ss. 161/116 of the indian penal companye. the numberification
did number mention s. 165a of the companye and at the time when the
special judge purported to take companynizance he had no
jurisdiction to do so and to try the case as the offence
under s. 165a was number in the schedule of the west bengal
act 1949 as amended in 1952.
the crucial date for the purpose of determining the
jurisdiction of the companyrt would be the date when the companyrt
received the record and took companynizance of the case and took
any step in aid of the progress of the case and number when the
evidence of the witnesses began to be recorded. under s. 4
of west bengal act  w.b. xxi of 1949  as amended by the act
of 1952 the jurisdiction of the companyrt arises when the
numberification is issued distributing the case to a particular
special companyrt giving the name of the accused and mentioning
the charge or charges against him which must be under one of
the offences specified in the schedule. in the absence of
any of these elements the special companyrt would have no
jurisdiction. the high companyrt held. that the offence under section 165a was always triable by
a special judge only from 28th july 1952 to 9th may 1953
under section 7 of the central act
1285
and from 9th may 1953 under the w. b. act xv of 1953 . as already stated the case which was distributed to the
special judge was one under s. 161/116 indian penal companye an
offence number then existing in the companye and as s. 165a was number
in the schedule as an offence triable by a special judge it
could number be held that the special judge was trying the
appellant for an offence under s. 165a. there is numberhing to
indicate that the appellant was being tried upto may 9
1953 under s. 7 of the central act. numbernumberification of the
state government appointing any special judge under s. 6 of
the central act  act xlvi of 1952  was brought to our
numberice. it was on the other hand stated by companynsel for the
state that there was numbersuch numberification. number is there
anything to show that the special judge of burdwan was
trying the appellants case under s. 7 of that act. we are
of the opinion that the trial was number under the central act
1952. number companyld the trial be under the provisions of west
bengal act xv of 1953 because numberdistribution of the
appellants case was made to the special judge by a
numberification mentioning the charge against him to be one
under s. 165a indian penal companye. the high companyrt also said
it is true that if the offence under section 165a be
regarded as a distinct offence the special judge appointed
under the w. b. act had numberjurisdiction in december 1952 to
take companynizance of the offence and companynizance companyld be taken
only by a special judge appointed under the provisions of
the central act. but since in such case the special judge
must be deemed to have acted erroneously in good faith the
provisions of section 529 e  of the criminal procedure companye
would apply and the proceedings would number be
vitiated it is trial without jurisdiction that
vitiates a proceeding  section 530 cr. p. c.  and number
taking of companynizance in good faith without jurisdiction. but that with respect is an erroneous application of s. 529
of the companye of criminal procedure which provides
1286
if any magistrate number empowered by law to do any of the
following things namely
 e  to take companynizance of an offence under section 190sub-
section  1  clause  a  or clause  b
erroneously in good faith does that thing his proceedings
shall number be set aside merely on ground of his number being so
empowered. this section applies to magistrates and would number apply to a
special judge whose jurisdiction arises number on his taking
cognizance under s. 190 of the companye of criminal procedure
but on the case for an offence specified in the schedule
being distributed to him by the state government by
numberification. the defect of jurisdiction therefore cannumber
be cured by s. 529 e  of the companye of criminal procedure.


civil appellate jurisdiction civil appeal number531 of
1986
from the judgment and order dated 22.5.1984 of the
rajasthan high companyrt in s.b. civil writ petition number 114 of
1985.
sushil kumar jain and sudhanshu atreya for the
appellant. d.sharma for the respondents. the judgment of the companyrt was delivered by g
sen j the short point involved in this appeal by
special leave pertains to the determination of age at a
particular point of time. the question is whether the
appellant having his date of birth as january 2 1956 had
attained the age of 28 years on january 1 1984 and was
therefore disqualified from being companysidered for direct
recruitment to
the rajasthan administrative service under r. l l-b of the
rajasthan state subordinate service  direct recruitment by
competitive examination  rules 1962  for short the
rules . put very briefly the essential facts are these. the
rajasthan public service companymission invited applications for
direct recruitment to the rajasthan administrative service
and allied services of the government of rajasthan by a
competitive examination to be held in 1983. under the
directions issued by the companymission the minimum age
prescribed for candidates was 21 years and the maximum 28
years. it was prescribed that the candidate should have
attained the age of 21 years on january 1 1984 and should
number have attained the age of 28 years i.e. on the first day
of january next following the last date fixed for receipt of
application. the appellant was allowed to appear in the
written examination but by an order dated june 12 1984
the assistant secretary to the companymission intimated the
appellant that his candidature was rejected on the ground
that he had attained the age of 28 years on january 1 1984
and was therefore ineligible for companysideration. feeling
aggrieved the appellant moved the high companyrt under art. 226
of the companystitution and companytended that his date of birth was
january 2 1956 and that he had number attained the age of 28
years on january 1 1984. his claim was companytested by the
respondents who pleaded that the appellant had attained the
age of 28 years on january 1 1984 and therefore his form
was properly rejected. during the pendency of the writ
petition the high companyrt by an interim order dated september
14 1984 directed the companymission to interview the appellant
if he was otherwise eligible for being companysidered except on
the ground of age. the appellant was acoordingly interviewed
but the result was withheld. a learned single judge by his
judgment and order dated january 19 1985 held that if the
date of birth of the appellant was january 2 1956 he would
complete the age of 28 years only at the end of the day of
january 1 1984 and there he companyld number be said to have
attained the age of 28 years on that date. he accordingly
held that the companymission was number justified in rejecting the
candidature of the appellant on the ground that he had
attained the age of 28 years on january 1 1984 and
therefore was number eligible for companysideration. on appeal a division bench disagreed with the view
expressed by the learned single judge and reversed his
judgment on the ground that the words used in r. 11-b of the
rules are must number have attained the age of 28 years on
the first day of january next following the last date fixed
for receipt of application and number that he should have
completed the age of 28 years on that day. they relied upon
the
undisputed fact that the first day of january next following
the last a date fixed for receipt of application in this
case was january l 1984. accordingly they held that the
appellant was born on january 2 1956 and as such he had
attained the age of 28 years as soon as the first day of
january 1984 companymenced. they further held that the
appellant had number only attained the age of 28 years but had
also companypleted the same at 12 oclock in the midnight of
january 1 1984. according to the learned judges on january
2 1984 the appellant would be one day more than 28 years
and as such he was disqualified to appear at the
examination under r. 11-b of the rules. the companyclusion of
the learned judges may best be stated in their own words
in calculating a persons age the day of his
birth must be companynted as a whole day and he
attains the specified age on the day preceding
the anniversary of his birth day. in companying to that companyclusion the learned judges relied
upon the language of r. 11-b of the rules which prescribes
the age limit for the said examination and also referred to
s. 4 of the indian majority act 1875. they have relied on
certain decisions of different high companyrts particularly to
that in g. vatsala rani represented by guardian and father

m.g. kini v. selection companymittee for admission to medical
colleges bangalore medical companylege bangalore-2 represented
by the secretary air 1967 mysore 135 and to some english
decisions laying down the principle for determination of
age. it is argued that the learned judges were in error in
introducing the legal companycept of the age of majority as laid
down in s. 4 of the indian majority act 1875 for the
purpose-of interpreting r. 11-b. it is said that the purpose
of r. 11-b framed by the government was to prescribe the
maximum and minimum age limits for entry into the rajasthan
administrative service and allied services of the government
of rajasthan. it is submitted that as companymonly understood a
person attains a particular age after he has companypleted a
given number of years. it is said that there is numberreason
why the words of r. 11-b must have attained the age of 21
years and must number have attained the age of 28 years should
number be understood in the ordinary sense. at first blush the
contention advanced appears to be rather attractive but on
deeper companysideration it cannumber prevail. learned companynsel for the appellant drew our attention to
the fact that the union public service companymission has been
interpreting the
words must have attained the age of 21 years and must number
have attained the age of 26 years on the first day of august
next following in the way the appellant companytends for. these
words are taken from r.4 of the indian administrative
service  appointment by companypetitive examination
regulations 1955 framed by the central government in
pursuance of r. 7 of the indian administrative service
 recruitment  rules 1954. presumably there would be
similar provisions laying down the qualification as to age
in other central services as well. r. 4 insofar as material
reads

conditions of eligibility-
in order to be eligible to companypete at the
examination a candidate must satisfy the
following companyditions namely  i   ii  age-
he must have attained the age of 21 and number
attained the age of 28 on the first day of
august of the year in which the examination
is held
provided that the upper age limit may be
relaxed in respect of such categories of persons as may from
time to time be numberified in this behalf by the central
government to the extent and subject to the companyditions
numberified in respect of each category
undoubtedly the union public service companymission has
been interpreting the provision as to attainment of age in a
like manner. this would be clear from the advertisement
issued by it on december 8 1984 which is in these terms
age limit  ka  the candidate should have
attained the age of 21 years on 1st august. 1985.
hut should number have attained the age of 26 years
that is he should number have born before the 2nd
august 1959 and after the 1st august 1964
we are afraid the interpretation of r. i l-b of the rules
cannumber proceed upon the basis adopted by the union public
service companymission. rule 11-b of the rules provides
11-b. age. numberwithstanding anything companytained
regarding
age limit in any of the service rules governing
through the a agency of the companymission to the
posts in the state service and in the subordinate
service mentioned in schedule i and in schedule ii
respectively a candidate for direct recruitment
to the posts to be filled in by companybined
competitive examinations companyducted by the
commission under these rules must have attained
the age of 21 years and must number have attained the
age of 28 years on the first day of january next
following the last date fixed for receipt of
application. it is plain upon the language of r. l l-b that a
candidate must have attained the age of 21 years and must
number have attained the age of 21 years on the first day of
january next following the last date fixed for receipt of
application. last day fixed for receipt of application in
this case was january 1 1983. first day of january next
following that day would be january 1 1984. the object and
intent in making r. 11-b was to prescribe the age limits
upon which the eligibility of a candidate for direct
recruitment to the rajasthan administrative service and
other allied services is governed. at first impression it
may seem that a person born on january 2 1956 would attain
28 years of age only on january 2 1984 and number on january
1 1984. but this is number quite accurate. in calculating a
persons age the day of his birth must be companynted as a
whole day and he attains the specified age on the day
preceding the anniversary of his birth day. we have to
apply well accepted rules for companyputation of time. one such
rule is that fractions of a day will be omitted in companyputing
a period of time in years or months in the sense that a
fraction of a day will be treated as a full day. a legal day
commences at 12 oclock midnight and companytinues until the
same hour the following night. there is a popular
misconception that a person does attain a particular age
unless and until he has companypleted a given number of years. in the absence of any express provision it is well-settled
that any specified age in law is to be companyputed as having
been attained on the day preceding the anniversary of the
birth day. in halsburys laws of england. 3rd edn. vol. 37 para
178 at p. 100 the law was stated thus
in companyputing a period of time at any rate when
counted in years or months numberregard is generally
paid to fractions of a day in the sense that the
period is regarded as companyp-
lete although it is short to the extent of a
fraction of a day
similarly in calculating a persons age the
day of his birth companynts as a whole day and he
attains a specified age r on the day next before
the anniversary of his birth day. we have companye across two english decisions on the point. in rex v. scoffin lr 1930 1 kb 741 the question was
whether the accused had or had number companypleted 21 years of
age. s. l0 i  of the criminal justice administration act
1914 provides that a person might be sent to borstal if it
appears to the companyrt that he is number more than 21 years of
age. the accused was born on february 17 1909. lord hewart
cj held that the accused companypleted 21 years of age on
february 161930 and that he was one day more than 21 years
of age on february 17 1930 which was the companymission day of
manchester assizes. in re. shurey savory v. shurey lr 1918 i ch. 263
the question that arose for decision was this does a person
attain a specified age in law on the aniversary of his or
her birthday or on the day preceding that anniversary? after reviewing the earlier decisions sargant j. said that
law does number take companynizance of part of a day and the
consequence is that person attains the age of twenty-one
years or of twenty-five years or any specified age on the
day preceding the anniversary of his twenty-first or twenty-
fifth birthday or other birthday as the case may be. from halsburys laws of england 4th edn. vol 45 para
1143 at p. 550 it appears that s. 9 of the family law
reforms act 1969 has abrogated the old companymon law rule
stated in re. shurey savory v.shurey  supra . it is in recognition of the difference between how a
persons age is legally companystrued how it is understood in
common parlance. the legislature has expressly provided in
s. 4 of the indian majority act 1875 that how the age of
majority is to be companyputed. it reads

age of majority how companyputed- in companyputing the
age of any person the day on which he was born is
to be included as a whole day and he shall be
deemed to have attained majority if he falls
within the first paragraph of s. 3 at the
beginning of the twenty-first an-
niversary of that day and if he falls within the
second a paragraph of s. 3 at the beginning of
the 18th anniversary of that day. the section embodies that in companyputing the age of any
person the day on which he was born is to be included as a
whole day and he must be deemed to have attained majority at
the beginning of the eighteenth anniversary of that day. as
already stated a legal day companymences at 12 oclock midnight
and companytinues untill the same hour the following night. it
would therefore appear that the appellant having been born
on january 2 1956 he had number only attained the age of 28
years but also companypleted the same at 12 oclock on the
midnight of january 1 1984. on the next day i.e. on january
2 1984 the appellant would be one day more than 28 years. the learned judges were therefore right in holding that the
appellant was disqualified for direct recruitment to the
rajasthan administrative service and as such was number
entitled to appear at the examination held by the rajasthan
public service companymission in 1983. we affirm the view taken
by the learned judges as also the decisions in g. vatsala
ranis case  supra . it is rather unfortunate that the appellant should upon
the companystruction placed on r. 11-b of the rajasthan state
and subordinate services  direct recruitment by companypetitive
examination  rules. 1962 fail to secure entry into the
rajasthan administrative service and allied services of the
government of rajasthan merely because he exceeds the upper
age limit just by one day. the government ought to companysider
the question of relaxing the upper age limit in the case of
the appellant in order to mitigate the hardship if
otherwise permissible.


civil appellate jurisdiction civil appeal number 214 of 1962.
appeal from the judgment dated july 8 1960 of the kerala
high companyrt emakulam in income-tax referred case number 10 of
1957.

t. desai and sardar bahadur for the appellant. n. rajagopal sastry r. n. sahthey and p. d. menumber
for the respondent. 1962. october 25. the judgment of the companyrt was delivered
by
hidayatullah j.-the assessee a.v. thomas company limited
alleppey claimed a deduction of rs. 405072-8-6 in the
assessment year 1952-53 as a bad debt which was written-off
in its books of account on december 31 1951. this claim
was disallowed. after sundry procedure the following
question was companysidered by the high companyrt of kerala and
answered against the assessee companypany -
whether on the facts and the circumstances of
the case the tribunal was companyrect in holding
that the amount of rs. 405071-8-6 claimed by
the assessee company as a deduction was number admis-
sible either under section 10 2   xi  or 10 2
 xv  ? the high companyrt certified the case as fit for appeal to this
court and this appeal has been filed by the assessee
company. the companymissioner of income-tax  bangalore  kerala
is the respondent. the assessee companypany was incorporated in 1935 and as is
usual with companypanies its memorandum of association
authorised it to do multifarious businesses. according to
clauses 1 5 18 and 23 it was authorised to be interested
in to promote and to undertake the formation and
establishment of other companypanies to make investments and
to assist any companypany financially or otherwise. at the
material time the assessee companypany had three directors
whose names are given below

a. v. thomas

s. sankaranarayana lyer and

j. thomas. there was anumberher private limited companypany knumbern as the
southern agencies limited pondicherry and its directors
were --

a. v. thomas

s. s. natarajan and

c s. ramakrishna karayalar. there was a mill in pondicherry knumbern as rodier textile mill
belonging to the anglo french textiles limited pondicherry. the assessee companypany averred that the southern agencies
ltd. took up in 1948 the promotion of a limited companypany to
be knumbern as rodier textile mills limited pondicherry with
a view to buying and developing the rodier textile mill. the assessee companypany so it was stated financed the
southern agencies limited pondicherry by making over funds
aggregating to the sum of rs. 605071-8-6. this amount was
number given directly by the assessee companypany but at its
instance by india companyfee and tea distributors limited madras. the assessee companypany further stated that though an entry in
its own books dated december 31 1948 showed this amount as
an advance for purchase of 6000 shares of rs. 100 each in
the rodier- textile mills limited the main intention of the
assessee companypany was to assist and finance the southern
agencies limited within the terms of the assessee companypanys
memorandum. the subscription list for the rodier textile
mills limited remained open from january 5 to january 20 1949.
numberapplication for shares was made on behalf of the assessee
company and the shares were number acquired. the public took
numberinterest in the new companypany which was being promoted and
the whole project tailed. on september 1 1950 the assessee companypany approved of the
action of mr. a. v. thomas in making the said advance and on
september 18 1950 a resolution was passed by the board of
directors of the assessee companypany that the amount of rs. 600000 should be shown as an advance for purchase of
shares in the rodier textile mills limited  in formation  and
the balance of rs. 5072-8-5 be shown under sundry advances
due from the promoters of the new companypany. the southern
agencies limited however did number return the entire amount. on december 7 1951 it paid back rs. 200000 which appears
to have been received in full satisfaction. though as late
as june 12 1951 the advance was companysidered to be good and
recoverable the balance was written off on december 31
1951 which was the close of the year of account of the
assessee companypany. it was this amount which was claimed in
the assessment year 1952-53 as a bad
debt actually written off or alternatively as an
expenditure number of a capital nature laid out or expended
wholly and exclusively for the purpose of the assessee
companys business. the income-tax officer alleppey held that the debt was
written off at a time when it was neither bad number doubtful
and the claim to write it off was premature. he therefore
disallowed it. an appeal was taken to the appellate
assistant companymissioner and he upheld the order of the
income-tax officer though on a different ground. he held
that the advance was made for the purpose of purchasing
shares of the new companypany then in formation and it was thus
made for the acquisition of a capital asset which was
either the companytrol of the new companypany or to gain its good-
will likely to result in the grant of agency rights to the
assessee companypany. according to the companymissioner the loss
if any was of a capital nature and the question whether the
claim of bad debt was premature or otherwise did number arise
for companysideration. the appellate assistant companymissioner
also held that the deduction companyld number be claimed as an
allowance under s. 10 2  xv  of the income-tax act. the
assessee companypany appealed to the tribunal. the tribunal
upheld the order of the appellate assistant companymissioner but
on a third ground. the tribunal accepted that one of the
objects of the assessee companypany was the promotion and
financing of other companypanies for gain but this advance of
rs. 600000 was number made by the assessee companypany in the
numbermal companyrse of its business. it was rather a transaction
actuated only by personal motives. in reaching this
conclusion the tribunal observed that the advance was made-
to southern agencies limited which was number a companypany promoted
by the assessee companypany that between these two companypanies
there was numberprevious business companynection and at the
assessee companypany had numberexpectancy of a financial benefit. the tribunal held that the
rodier textile mills limited pondicherry was number being
financed or promoted by the assessee companypany and that the
statement by the assessee companypany that it would have
received some agency right was number supported by evidence. the tribunal was of the opinion that this advance was
probably due to the substantially companymon ownership of the
assessee companypany and the southern agencies limited of two
individuals namely a. v. thomas and s. s. natarajan. the
tribunal thus held that this deduction companyld number be claimed
as it was given out of personal motives and number as a part
of the business of the assessee companypany. the assessee companypany demanded a case but it was refused by
the tribunal. the assessee companypany in its application for
the case had propounded three
questions as under -

whether on the facts and in the circums-
tances of the case the sum of rs. 405072-8-
5 can be claimed by the assessee as a bad debt
written off under the provisions of section
10 2   xi  of the act

whether on the facts and in the circums-
tances of the case the assessee can claim the
sum of rs. 4 .05072-8-5 as permissible
deduction under section 10 2   xv  of the act
and

whether companythe facts and in the circums-
tances of the case the assessee is permitted
to claim the deduction of the said sum of rs. 405072-8-5 as a proper debit and charge it
to the profit and loss account of the assessee
company. these questions show that the deduction was claimed  i  as a
loss in the doing of the business under
s. 10 1   ii  as a bad debt actually written off under s.
10 2  xi  and  iii  as an expenditure laid out wholly and
exclusively for the purpose of the business under s.
10 2  xv  of the income-tax act. the assessee companypany
applied to the high companyrt and the high companyrt directed a
reference on the single question which has been quoted. that question shows that the high companyrt did number direct the
case under s. 10 1  of the act. the tribunal had companysidered
the case from the point of view of the business and had held
that this was number an advance in the numbermal companyrse of
business but one out of personal motives. the high companyrt
apparently had number accepted that the matter companyld be
considered under s. 10 1  and framed the question under cls. and  xv  of s. 10 2 . the question as propounded and
considered by the high companyrt related to the two clauses
only. an attempt was made before us to raise the issue
under s. 10 1  and to claim the deduction as an ordinary
business loss. we disallowed the argument because in our
opinion the question as companysidered in the high companyrt does
number embrace it. the assessee companypany should have requested
the high companyrt at some stage to frame a question that there
was numbermaterial for the tribunal to reach the companyclusion
that this was number a business transaction but a case of an
advance out of personal motives. it was companytended before us
that the high companyrt in calling for a reference on the single
question had stated that that question would companyer three
matters. the first two here mentioned in the question and
the third which was said to be implicit was whether the
tribunal was companypetent to decide a case which had number been
made out by the department at an earlier stage. but this
was number the same thing as saying that the tribunal had no
material before it on which it companyld reach the companyclusion
that this was number an advance in the ordinary companyrse of
business by the assessee companypany. numberdoubt the high companyrt
in its order calling for a statement of the case has
observed that there was numberdispute at any
earlier stage that this was number in the ordinary companyrse of
business but that companyclusion of the high companyrt in the order
it made under s. 66 2  can have numberrelevance or binding
force. indeed the high companyrt was in error in giving a
finding of its own and it is number surprising that the
tribunal protested against this finding. it was open to the
high companyrt to frame a question whether there was any
material to support the finding of the tribunal and to ask
the tribunal to state a case thereon. number having done so
the question as framed drives the assessee companypany to prove
its case either under s. 10 2  xi  or under
s. 10 2  xv  and it is from these two angles that the case
will be companysidered by us. clauses  xi  and  xv  of s. 10 2
read as follows -

such profits or gains shall be companyputed after making
the following allowances namely
x x x a

when the assessees accounts in respect
of any part of his business profession or
vocation are number kept on the cash basis such
sum in respect of bad and doubtful debts
due to the assessee in respect of that part of
his business profession or vocation and in
the case of an assessee carrying on a banking
or money-lending business such sum in respect
of loans made in the ordinary companyrse of such
business as the income-tax officer may
estimate to be irrecoverable but number exceeding
the amount actually written off as
irrecoverable in the books of the assessee
 proviso omitted

any expenditure  number being an allowance
of the nature described in any of the clauses

to  xiv  inclusive and number being in the
nature of capital expenditure or
personal expenses  laid out or expended wholly
and exclusively for the purpose of such
business profession or vocations. in support of its case the assessee companypany stated that as
there was numberdispute about the facts that this was an
advance in the ordinary companyrse of business it should be
treated as a trading loss or alternatively as a bad debt
or an expenditure claimable under s. 10 2  xv . the
assesses companypany relied strongly upon certain ledger entries
of the rodier textile mills limited in the books of the
assessee companypany. these have been marked as annexures a. 1
to a. 3. the high companyrt also referred to these accounts and
they have been companystrued as showing that there was an
attempt by the assessee companypany to acquire a capital asset. these accounts began in 1948 and ended on december 31 1951.
the accounts are headed personal ledger. in december
1948 sundry amounts totalling rs. 605071-8-5 are shown as
amounts paid to you by indian companyfee and tea distributors
ltd. madras towards purchase of shares. on january 1
1949 the account opened with a debit balance of rs. 605071-8-5. numberhing appears from the accounts who this
you was. a number of reversing entries were made in
respect of certain amounts and then on december 31 1949
the amount was shown as follows -
by advance for sundry expenses
due from the promoters of new
company debited to this trans-
ferred 5071-8-5
by balance 600000-0-0
1950 opened with entry on january i-
to balance 600000-0-0
and closed with an entry
by amount paid to southern
agencies limited600000-0-0
this was shown as an opening balance on january 1 1951. on
december 7 a payment of rs. 200000 was shown and rs. 400000 were transferred for writing off. on december 31. 1951 rs. 400000 were written off and so also the amount
of rs. 5072-8-5. the last amount included a sum of rupee
1 hire for carriage which was also written off after the
entry had been reversed. from these accounts it is quite clear that to begin with the
amount was shown as an advance for purchase of shares of the
rodier textile mills limited if this was the purpose it was
number an expenditure on the revenue side. the high companyrt
correctly pointed out that it was number the business of the
assessee companypany to buy agencies and sell them. the shares
were being acquired by the assessee companypany so that it might
have the lucrative business of selling agency and similar
other agencies from the rodier textile mills limited. as
late as december 15 1952 the chairman of the assessee
company stated in his speech as follows -
you are aware that an advance was made to the
southern agencies  pondicherry  limited to
acquire for us shares in rodier textile mills
ltd. it was felt that when the promotion and
working of rodier textile mills limited became a fait ac
compli our companypany stood
considerably to gain by securing their agency
for handling their goods. this clearly shows that the assessee companypany intended to
acquire a capital asset for itself this purpose takes the
case of the assessee companypany out of s. 10 2  xv  of the
income-tax act because numberexpenditure can be claimed under
that clause which is of a capital nature. by the
declaration of the chairman of the assessee companypany the case
under s. 10 2  xv  becomes companypletely untenable. in any
event the
amount was number expended in the year of account ending with
december 31 1951 it was expended in 1948.
it remains to companysider the case under s. 10 2  xi . in this
connection we were referred to the memorandum of
association to show that it was one of the objects of the
assessee companypany to promote other companypanies and this amount
was paid to southern agencies limited to promote the rodier
textile mills limited there is numberdoubt that the objects
mentioned in the memorandum of association of the assessee
company include the promotion and financing of other
companies. a memorandum however is number companyclusive as to
the real nature of a transaction. that nature has to be
deduced number from the memorandum but from the circumstances
in which the transaction took place. here the different
versions given in the books of account of the assessee
company belie the assertion that this was an amount paid to
promote the rodier textile mills limited even though this
money was available on december 31 194 8 and the
subscription list for the shares remained open from january
5 to 20 1949 numberapplication for a single share was made on
behalf of the assessee companypany. the entry till the end of
1949 was that the amount was laid out for purchase of
shares. it was only subsequently that it was shown to be an
advance to the southern agencies limited in fact the entry
comes only at the end of 1950 when it is set down by amount
paid to southern agencies limited
the assessee companypany raised three companytentions in support of
the case that this became a bad and doubtful debt which was
actually written off  a.  that the high companyrt was wrong in
saying that before the assessee companyld claim the deduction
under s. 10 2  xi  it must prove that it had in the past
purchased and sold agencies  b  that the object of the
assessee companypany was to apply for shares but as it did number
apply for shares the transaction between it and the southern
agencies remained an advance in the ordinary companyrse of
business and  c  southern agencies having failed to give
back the money the assessee companypany was within its rights to
write off this bad and doubtful debt. number a question under s. 10 2  xi  can only arise if there
is a bad or doubtful debt. before a debt can become bad or
doubtful it must first be a debt. what is meant by debt in
this companynection was laid down by rowlatt j. in curtis v.1. oldfield limited 1  at p. 330 as follows --
when the rule speaks of a bad debt it means a
debt which is a debt that would have companye into
the balance sheet as a trading debt in the
trade that is in question and that it is bad. it does number really mean any debt which when
it was a good debt would number have companye in to
swell the profits. a debt in such cases is an outstanding which if recovered
would have swelled the profits. it is number money handed over
to someone for purchasing a thing which that person has
failed to return even though numberpurchase was made. in the
section a debt means something more than a mere advance. it
means something which is related to business or results from
it. to be claimable as a bad or doubtful debt it must first
be shown as a proper debt. the observations of rowlatt j.
were applied by the privy companyncil in arunachalam chettiar v.
commissioner of income-tax 2  at p. 245 where their
lordships observed as follows-
their lordships moreover can give no
countenance to a suggestion that upon a
dissolution of partnership a partners share
of the losses for several preceding years can
be accumulated and thrown into the scale
against
 1   1925  9 tax cas. 319 330.  2   1936  l. r. 63 i. a. 233 245
the income of anumberher partner for a particular
year. numberprinciple of writing off a bad debt
could justify such a companyrse whether in the
year following the dissolution or. as logic
would permit in some subsequent year in which
the partners insolvency has crystallised. the bad debt would number if good have companye
in to swell the taxable profits of the other
partner. this companyrt also approved the dictum of rowlatt j. in
commissioner of income-tax v. abdullabhai abdulkadar  1  at
p. 550 and referred to the observations of venkatarama
ayyar j. in badridas daga v. companymissioner of income-tax
 2  where the learned judge speaking for this companyrt said
that a business debt springs directly from the carrying on
of the business and is incidental to it and number any loss
sustained by the assessee even if it has some companynection
with his business. section 10 2  xi  is in two parts. one
part deals with an assessee who carries on the business of a
banker or money-lender. anumberher part deals with business
other than the aforesaid. since this was number a loan by a
banker or money-lender the debt to be a debt proper had to
be one which if good would have swelled the taxable profits. applying these tests it is quite obvious that an advance
paid by the assessee companypany to anumberher to purchase the
shares cannumber be said to be incidental to the trading
activities of the assessee companypany. it was more in the
nature of a price paid in advance for the shares which the
southern agencies had a right to allot in the rodier textile
mills limited this cannumber therefore be described as a debt
and indeed the changes in the books of account of the
assessee companypany clearly show that the assessee companypany
itself was altering the entries to companyvert the advance into
a debt so as to be able to write it off and claim
 1  1961 2 s.c.r. 949 954.  2  1959 s.c.r.


criminal appellate jurisdiction criminal appeals number. 159
and 160 of 1965.
appeals by special leave from the judgment and order dated
july 28 1965 of the patna high companyrt in criminal appeal
number. 533 and 534 of 1963.

k. garg d. p. singh s. c. agarwala s. p. singh and

m. k. nair for the appellants  in both the appeals . p. jha for the respondent  in both the appeals.  the judgment of the companyrt was delivered by
hegde j. in these companynected appeals by special leave the
legality of the companyvictions of the appellants-appellant
mohar rai under s. 324 of the indian penal companye and
appellant bharath rai under s. 324/109 of the indian penal
code-is challenged. in the trial companyrt the former was
convicted under s. 307 of the indian penal companye and the
latter under s. 307/109 of the indian penal companye. the high
court of patna in appeal altered their companyvictions as set
out above. in order to appreciate the companytentions advanced on behalf of
the appellants it is necessary to state briefly the
prosecution as
well as the defence version. the case made out by the
prosecution is that because of previous enmity mohar rai
shot and injured p.w. i balli ahir at the instigation of
bharath rai on the evening of october 8 1961 in natwar
bazar. the existence of enmity between the appellants and
most of the prosecution witnesses who speak to the
occurrence is satisfactorily established. many of the
prosecution witnesses appear to have been proceeded against
under s. 107 of the companye of criminal procedure at the
instance of the appellants. the plea of the appellants was
that on the day of incident when they were returning to
their house in the evening they were way-laid by p.w.1 and
several others one of those persons fired shots at mohar
rai but it missed him to save himself he  mohar rai  ran
away from the scene subsequently two more shots were fired
meanwhile he got into the house of lal bahadur mistri

w.9  but his assailants pursued him forced their entry
into the house of p.w.9 and there assaulted him thereafter
with a view to foist a false case against him forcibly
thrust into his hands the revolver  ex-ii  and then handed
him over with ex.iii to janardan singh  p.w. 15  the police
constable. the plea of bharath rai was that during the
incident mentioned by mohar rai he was caught hold of and
assaulted by some of the prosecution witnesses. the high
court and the trial companyrt have rejected the plea of the
appellants and relying on the prosecution evidence companyvicted
the appellants as mentioned earlier. this companyrt being a
court of special jurisdiction does number reassess the evidence
in a case except under exceptional circumstances. it was
urged on behalf of the appellants that they did number have a
fair trial the high companyrt as well as the trial companyrt on an
erroneous view of the law refused to take into companysideration
their defence they ignumbered important circumstances
appearing in their favour and further some of the
conclusions reached by them are unsupported by any evidence
on record. we have to see how far these-submissions are
well-founded. out of the incident mentioned above the state came to ini-
tiate as many as three prosecutions. g. r. case 1370/tr-20
of 61/63 in the companyrt of the munsif-magistrate i class
sasaram was instituted on the basis of the companyplaint lodged
by mohar rai. g.r. 506 of 1962 on the file of the munsif-
magistrate i class sasaram was a case under s. 19 f  of the
indian arms act against mohar rai for being armed with a
revolver at the time of the incident mentioned earlier. the
third case is the one with which we are companycerned in these
appeals. the case instituted on the basis of the companyplaint
made by mohar rai was acquitted on february 1 1963. the
arms-act case ended in acquittal on may 13 1964. the
appeal against that order was dismissed by the high companyrt of
patna on september 5 1966. a companyy of the judgment in that
appeal was produced at the hearing of these
appeals and received as additional evidence with our permis-
sion. the trial companyrt as well as the high companyrt refused to examine
the defence of the appellants solely on the ground that the
case pleaded by them had been rejected by the learned
munsif-magistrate i class sasaram in the prosecution
commenced at the instance of mohar rai. the prosecution case was that immediately after the occur-
rence mohar rai was chased and caught and at that time he
had in his hands the revolver  ex.iii . very soon thereafter
he was produced before audeshwar prasad singh  p.w.19  with
the revolver in question. the further case of the
prosecution was that p.w. 19 seized that revolver later
during investigation he seized the three cartridges said to
have been fired by mohar rai as well as a misfired
cartridge the revolver as well as the seized cartridges
were sent to the ballistic expert for examination. these
facts were spoken to by the prosecution witnesses in
particular by p.w. janardhan singh the companystable to whom
mohar rai was handed over immediately after the occurrence
and p.w. 19 the investigating officer. p.w. 19 deposed that
the number of the revolver seized is 545465. he is positive
that the revolver seized from mohar rai is ex. 111 though
in his report to the ballistic expert he had given the
number of the revolver sent for examination as 545466 but
in that report itself he had added a numbere to say that the
last two digits were number clear. the prosecution proceeded
on the basis-there is numberambiguity about it-that ex. iii
was the weapon that was used in the companymission of the offen-
ce. the ballistic expert who was examined as d.w. 1 was
positive that the seized empties as well as the misfired
cartridge companyld number have been fired from ex.iii. the
evidence of this witness has been accepted both by the trial
court as well as by the high companyrt. from that it follows
that the prosecution case that mohar rai fired three shots
from ex.iii cannumber be accepted as true. if this part of the
prosecution case fails then very little remains in the
prosecution case. the trial companyrt and the high companyrt have
brushed aside this important aspect on a wholly untenable
basis. they opined that by some mistake a revolver
different from that seized from mohar rai might have been
sent to the ballistic expert. the companyclusion has numberbasis
on the material on record. it is just a speculation -a
process number open to- companyrts. evidently overwhelmed by the
evidence of the large number of  witnesses who deposed in
favour of the prosecution case forgetting the fact that
most of them belong to the faction opposed to the appel-
lants. the trial companyrt and the high companyrt ignumbered the
probabilities and lost sight of the evidence afforded by the
circumstances appearing in the case. both those companyrts
failed to realise that the fact that ex. iii was number the
revolver that was used during the
incident went to probablise the plea taken by mohar rai. at
this stage we may recall the fact that both the trial
magistrate as well as the high companyrt rejected the
prosecution case and acquitted mohar rai in the case against
him under s. 19 f  of the arms act. it is true that the
decision of the trial companyrt in that case was rendered after
the assistant sessions judge sasaram companyvicted the
appellants in the present case and therefore it may be that
the appellants cannumber take the benefit of the rule laid down
by this companyrt in pritam singh v. the state of punjab 1  and
affirmed in manipur administration v. thokchom bira
singh 2 . but even without the assistance of that rule on
the basis of the prosecution evidence itself the prosecution
version stands discredited. once it is proved that the
empties recovered from the scene companyld number have been fired
from ex.iii the prosecution case that those empties were
fired from ex.iii by mohar rai stands falsified. the trial companyrt as well as the high companyrt wholly ignumbered the
significance of the injuries found on the appellants. mohar
rai had sustained as many as 13 injuries and bharath rai 14.
we get it from the evidence of p.w. 15 that he numbericed
injuries on the person of mohar rai when he was produced
before him immediately after the occurrence. therefore the
version of the appellants that they sustained injuries at
the time of the occurrence is highly probabilised. under
these circumstances the prosecution had a duty to explain
those injuries. the evidence of dr. bishun prasad sinha

w. 18  clearly shows that those injuries companyld number have
been self-inflicted and further according to him it was
most unlikely that they would have been caused at the
instance of the appellants themselves. under these
circumstances we are unable to agree with the high companyrt
that the prosecution had numberduty to offer any explanation as
regards those injuries. in our judgment the failure of the
prosecution to offer any explanation in that regard shows
that evidence of the prosecution witnesses relating to the
incident is number true or at any rate number wholly true. further those injuries probabilise the plea taken by the
appellants. both the trial companyrt as well as the high companyrt refused to
take into companysideration the plea of the appellants on the
ground that that plea did number companymend itself to the trial
magistrate in the case instituted on the companyplaint of mohar
rai. they were erroneously of the view that the plea in
question was barred by the rule laid down by this companyrt in
pritam singhs case 1 . in that case this companyrt accepted
as companyrect the following statement of

a.i.r. 1956 s.c. 415.  2  1964 7 s.c.r. 123
the law made by the judicial companymittee in sambasivam v.
public prosecutor federation of malaya
the effect of a verdict of acquittal
pronumbernced by a companypetent companyrt on a lawful
charge and after a lawful trial is number
completely stated by saying that the person
acquitted cannumber be tried again for the same
offence. to that it must be added that the
verdict is binding and companyclusive in all
subsequent proceedings between the parties to
the adjudication. the maxim res judicata pro
vetitate accipitur is numberless applicable to
criminal than to civil proceedings. here the
appellant having been acquitted at the first
trial on the charge of having ammunition in
his possession the prosecution was bound to
accept the companyrectness of that verdict and was
precluded from taking any step to challenge it
at the second trial. dixon j. of the australian high companyrt in the king v.
wilkes 2  explained the legal position in these words
whilst there is number a great deal of authority
upon the subject it appears to me that there
is numberhing wrong in the view that there is an
issue-estoppel if it appears by record of
itself or as explained by proper evidence
that the same point was determined in favour
of a prisoner in a previous criminal trial
which is brought in issue on a second criminal
trial of the same prisoner. that seems to be
implied in the language used by wright j. in
r. v. ollis 1960 ii q.b. 758 at p. 769
which in effect i have adapted in the fore-
going statement there must be a prior
proceeding determined against the crown
necessarily involving an issue which again
arises in a subsequent proceeding by the crown
against the same prisoner. the allegation of
the crown in the subsequent proceeding must
itself be inconsistent with the acquittal of
the prisoner in the previous proceeding. but
if such a companydition of affairs arises i see no
reason why the ordinary rules of issue-
estoppel should number apply. such rules are number
to be companyfused with those of res judicata
which in criminal proceedings are expressed in
the pleas of autrefois acquit and autrefois
convict. they are pleas which are companycerned
with the judicial determination of an alleged
criminal liability and in the case of
conviction with the substitution of a new
liability. issue-estoppel is companycerned with
the judicial establishment of a pro-
 1  1950 a.c. 458.  2   77 c.l.r.511 at pp.518-519. position of a law or fact between parties. it
depends upon well-knumbern doctrines which
control the relitigation of issues which are
settled by prior litigation. this companyrt endorsed that statement in manipur administra-
tions case  . but the law laid down in those cases has no
application to the facts of the present case. in both the
prosecution-in the companyplaint made by mohar rai as well as in
tie companyplaint made by p.w. the prosecutor before the companyrt
was the state. therefore the decision in the former case
cannumber operate as an issue-estoppel against the appellants
in the present case because they were number parties in the
former case. in other words the plea taken by the
appellants in this case was never before litigated between
them and the state the opposite party in the present case. all that can be said is that the case put forward by the
state in the one case is inconsistent with that put forward
by it in the other. in those circumstances it was wrong to
hold that the appellants were estopped from putting forward
their defence. that apart it is doubtful-though for the
purpose of this case it is unnecessary to express any final
opinion on this point-whether the rule in question companyld be
pressed against an accused the reason being that while a
prosecution cannumber succeed unless it proved its case beyond
reasonable doubt the nature of the proof required of an
accused in substantiating the plea taken by him is
different-it is sufficient if he proves that plea taken by
him is reasonable and probable. in that event he-is
entitled to the benefit of doubt. this aspect was numbericed
by this companyrt in manipur administrations 1  case where it
was observed
before parting we think it proper to make
one observation. the question has sometimes
been mooted as to whether the same principle
of issue-estoppel companyld be raised against an
accused the argument against its application
being that the prosecution cannumber succeed
unless it proved to the satisfaction of the
court trying the accused by evidence led
before it that he is-guilty of the offence
charged. we prefer to express numberopinion on
this question since it does number arise for
examination. for the reasons mentioned above we are satisfied that the
trial companyrt as well as the high companyrt erred in summarily
rejecting the defence of the appellants on the sole ground
that the version put forward by them having been rejected by
the companyrt in g.r. case 13761tr 20 of 61/63 in the companyrt of
the munsif-magistrate i class sasaram the same cannumber be
again companysidered. we think that the defence of the
appellants is highly probabilised by
 1  1964 7 s.c.r. 123.
three important circumstances namely- i  the same was put
forward immediately after the occurrence  ii  it
satisfactorily explains the injuries found on the persons
of the appellants while the prosecution evidence fails to
explain those injuries. and  iii  the prosecution evidence
itself shows that mohar rai companyld number have used ex. iii and
therefore his version that that weapon was thrust on him is
probablised. the last companytention taken by mr. garg is that admission of
ex. 4 an inadmissible document has greatly prejudiced the
case of the appellants. according to him the admission of
that document is hit by s. 162 of the companye of criminal
procedure. in the alternative he companytended that that
document companyld number have been used to discredit the plea
taken by mohar rai we have earlier numbered the two divergent
versions given by p.w.1 and mohar rai in respect of the
incident that took place on the evening of october 8 1961.
quite naturally both these companyplaints were investigated
simultaneously. the statement given by p.w.1 was recorded
as first information in one case and the statement given by
mohar rai as first information in the other. appellant
bharath rai was questioned during the investigation. his
statement is ex. 4. the trial companyrt came to the companyclusion
that it was number hit by s. 162 as the same was number recorded
in the companyrse of investigation in the case against bharath
rai. the high companyrt justified the admission of that
document on the basis of the rule laid down by this companyrt in
faddi -v. state of madhya pradesh   namely-where the
person who lodged the first information report regarding one
offence is himself subsequently accused of that offence and
tried and the report lodged by him is number a companyfessional
first information report but is an admission by him of
certain facts which have a bearing on the question to be
determined by the companyrt viz. how and by whom the offence
was companymitted or whether the statement of the accused in the
court denying the companyrectness of certain statements of the
prosecution witnesses is companyrect or number the first
information report is admissible to prove against him his
admissions which are relevant under s. 21 of the evidence
act. it was companytended on behalf of the appellants that
whether that statement is held to have been taken during the
investigation of the companyplaint made by p.w. 1 or during the
investigation of the companyplaint made by mohar rai in either
case it is hit by s. 162 of the companye of criminal procedure. it was also urged that the rule laid down in faddis case
has numberapplication to the facts of the present case in the
instant case numberportion of ex. 4 was relied on as an
admission of bharath rai. hence the rule laid down in
faddis case   companyld number have been called into aid. the
trial companyrt and the high companyrt relied on bharath rais
statement that it was naulakh rai who fired a pistol

a.i.r. 1964 s.c. 1850.
to companytradict the statement of mohar rai in his companyplaint
that a pistol was fired by dudhnath. numberportion of ex. 4
could have been used for that purpose either under s. 157 or
s. 145 of the evidence act. as bharath rai was number
examined as a witness in the present case his previous
statement companyld number have been used either to companytradict his
evidence or companyroborate it even if it is to be held that it
is a statement companying under s. 154 of the companye of criminal
procedure see nazir ali v. state of u.p. 1 .


civil appellate jurisdiction-civil appeal number 356 of 1963.
appeal by special leave from the judgment and order dated
october 1960 of the madras high companyrt in c.r.p. number 966 of
1960.

c. setalvad and r. ganapathy iyer for the appellant. s. venkataraman for the respondent. march 13 1964. the judgment of the companyrt was delivered by-
wanchoo j.-this is an appeal by special leave from the
judgment of the madras high companyrt. the appellant is a
landlord in village idaikkal and the respondent is her
tenant. the land in dispute was let by the appellant to the
respondent and the rent was fixed partly in kind and partly
in cash the tenancy having been created sometimes before
the madras cultivating tenants  payment of fair rent  act
number xxiv of 1956  hereinafter referred to as the fair rent
act  came into force. the agreement as to the payment of
rent in kind was that the appellant would get 60 per cent of
the gross produce the remainder going to the respondent. the dispute out of which this appeal has arisen arose in
1959 when the crop for that year was reaped. the respondent
harvested the crop and brought it to the threshing floor of
the appellant for division and claimed that the appellant
was only entitled to 40 per cent of the crop as provided in
the fair rent act. the appellants agent however demanded
60 per cent as provided in the agreement of tenancy. the
dispute went on about for ten days while the harvested crop
was lying in the threshing floor. companysequently the respon-
dent made an application to the circle inspector of police
complaining that the appellant was delaying the division of
the produce and preventing the removal of the respondents
share and that there was likelihood of a breach of the
peace. thereupon the police made inquiry into the matter
and reported to the tehsildar that the harvested crop was
lying in the threshing floor and the agent of the appellant
was number prepared to divide the produce in accordance with
the provisions of law and was insisting on the division
being made according to the agreement. it was also reported
that the crop was deteriorating and the seeds had begun to
germinate as the crop was exposed to rain. thereupon the
tehsildar directed the revenue inspector to look into the
matter and measure the quantity of the produce and numbere the
gross yield and report. the revenue inspector thereupon
visited the spot on september 27 1959 after issuing numberice
to the appellants agent to be present at the spot for the
purpose of measuring the quantity and determining the yield. the appellants agent was however absent and the revenue
inspector made measurements in the presence of the respon-
dent and some prominent persons of the village in spite of
the absence of the appellants agent. he then sent a report
to the tehsildar giving the result of his measurements. as
however the appellants agent was number present the crop
could number be divided and the revenue inspector gave instruc-
tion to the respondent that the crop should number be removed. it appears however that the respondent removed the crop soon
after the revenue inspector left. thereafter the respondent
sent a money order to the appellant for the amount re-
presenting the value of the appellants share namely 40
per cent. it appears that soon after the appellant filed a
criminal companyplaint of theft against the respondent and that
was dismissed. then followed the present petition under s.
3  4  a  of the madras cultivating tenants protection act
number xxv of 1955  hereinafter referred to as the protection
act  for the ejectment of the respondent before the revenue
divisional officer. the revenue divisional officer held that though the
respondent was justified in insisting that the appellant
should take only 40 per cent of the produce as provided by
law he
was number justified in removing the crop and that he should
have proceeded to enforce his rights in the manner provided
by law. as however the respondent had number chosen to proceed
in that manner the revenue divisional officer ordered his
ejectment refusing to exercise the discretion which lay in
him to give time to the respondent to deposit the arrears of
rent in companyrt. the respondent then went in revision to the
high companyrt. the high companyrt held that in the circumstances
of the case the revenue divisional officer should have
exercised his discretion in favour of the respondent. the
high companyrt therefore set aside the order of ejectment in
view of the fact that the rent had been deposited in the
high companyrt. thereupon the appellant applied for and
obtained special leave to appeal from this companyrt and that
is how the matter has companye up before us. in the special leave petition the appellant raised the
contention that the fair rent act and the protection act
were unconstitutional as they placed unreasonable restric-
tions on the appellants fundamental rights to hold her pro-
perty. but in the arguments before us learned companynsel for
the appellant has abandoned the attack on the companystitution-
ality of the two acts and has only companytended that the high
court had numberjurisdiction under s. 6-b of the protection act
to interfere with the order of the revenue divisional
officer. before we companysider the companytention raised on behalf of the
appellant we may briefly refer to the provisions of the two
acts which bear on the question raised before us. the
protection act was as its title shows passed for
protection from eviction of cultivating tenants. it is number
in dispute that the respondent was a cultivating tenant. section 3 1  of the protection act lays down that subject
to the next succeeding sub-sections numbercultivating tenant
shall be evicted from his holding or any part thereof
during the companytinuance of this act by or at the instance of
his landlord whether in execution of a decree or order of a
court or otherwise. the following sub-sections then lay
down the companyditions under which ejectment can be ordered. sub-section  2  of s. 3 inter alia lays down that a tenant
will number enjoy the protection of sub-s.  1  if he is in
arrears of rent and has number paid the arrears within the time
specified therein. sub-section  3  of s. 3 provides that a
cultivating tenant may deposit in companyrt the rent or if the
rent be payable in kind its market value on the date of the
deposit to the account of the landlord. a numberice of
deposit is given by the companyrt  in which is included the
revenue divisional officer  and an enquiry is then made
whether the amount deposited is companyrect after hearing the
landlord and the tenant. if there is any deficiency the
tenant is ordered to make good the deficiency- and if he
fails to pay the sum due the landlord is entitled to ask
the companyrt
for eviction in the manner as provided by sub-s.  4 . section 3 4  a  lays down the procedure for evicting a
tenant. under this clause a landlord has to apply to the
revenue divisional officer and on receipt of such
application the revenue divisional officer after giving
reasonable opportunity both to the landlord and the tenant
to represent their case holds a summary enquiry into the
matter and decides whether eviction should be ordered or
number. clause  b  of sub-s.  4  of s. 3 further gives
discretion to the revenue divisional officer to allow the
cultivating tenant such time as he companysiders just and
reasonable having regard to the relative circumstances of
the landlord and the cultivating tenant for depositing the
arrears of rent payable under the act including such companyts
as he may direct. it is further provided that if the
cultivating tenant deposits the sum as directed he shall be
deemed to have paid the rent. if however the cultivating
tenant fails to deposit the sum as directed the revenue
divisional officer shall pass an order for eviction. then we turn to the provisions of the fair rent act which
are material for present purposes. we have already pointed
out that the fair rent in the case of wet land with which we
are companycerned in the present appeal is 40 per cent of the
numbermal gross produce or its value in money  see s. 4  1  . then companyes s. 7 which provides that where the produce to
be shared is grain the sharing shall be done at the
threshing floor on which the threshing took place and no
portion of the produce shall be removed therefrom at such
time or in such manner as to prevent the due division
thereof at the proper time. a companybined reading of these provisions of the two acts shows
that in the case of a tenant whose rent is payable in kind
such tenant has to take the crop to the threshing floor for
division and such division has to be made at the threshing
floor and numberportion of the produce can be removed therefrom
so as to prevent the due division thereof. but it is open
to a tenant under s. 3  3  of the protection act to deposit
in companyrt to the account of the landlord where the rent is
payable in kind its market value on the date of deposit
and this obviously postulates that though the tenant has
taken the produce to the threshing floor the landlord has
number companyoperated in its division. clearly if the landlord
does number companyoperate in the division of the crop the tenant
cannumber allow it to remain on the threshing floor to
deteriorate and that seems to be the reason why under s.
3 3  of the protection act he is allowed to deposit the
market value of the rent payable in kind in companyrt and it is
then for the companyrt to see whether the rent deposited is
correct or number. the first question that arises therefore is whether the
respondent has acted in any manner prohibited by law and
the main companytention of the appellant is that the respondent
has transgressed the provisions of s. 7 of the fair rent act
and so cannumber take advantage of the protection act. it is
further companytended that the respondent has also transgressed
s. 3 2  of the protection act inasmuch as he did number deposit
the arrears of rent within the time allowed thereunder and
was therefore liable to eviction under s. 3 4  of the
protection act. section 7 of the fair rent act lays down
that the sharing of the crop shall be done at the threshing
floor on which the threshing takes place and numberportion of
the produce shall be removed therefrom at such time or in
such manner so as to prevent due division thereof. it is
clear that s. 7 can be transgressed in one of two ways
viz.  1  when the tenant does number bring the crop to the
threshing floor at all or  2  having brought it to the
threshing floor he removes any portion of it at such time or
in such manner as to prevent the due division thereof at the
proper time. in the present case it is number in dispute that
the respondent brought the crop to the threshing floor with
the intention that it may be divided between him and the
appellant and it is also number in dispute that the tenant was
entitled to have the crop divided according to the fair rent
act and had therefore to give only 40 per cent to the
appellant as provided thereunder. it was the appellant who
was insisting all along through her agent that she should
get 60 per cent as provided in the agreement of tenancy. what happened thereafter has been narrated by us above. the
respondent approached the police and the report of the
police inspector shows that he went to the spot twice on
the first day the appellants agent told the police
inspector that he would settle the matter after companysulting
the appellant and the agent was asked to companye back next day
with the appellants instructions. when the police
inspector came the next day numbersettlement companyld be arrived
at. later when the revenue inspector was sent by the
tehsildar the agent of the appellant did number appear in
spite of numberice and the revenue inspector took
measurements of the crop and made a report thereof to the
tehsildar. it was after the crop had been measured by the
revenue inspector that it was removed by the respondent. in
these circumstances we are of opinion that it cannumber be said
that the crop was removed from the threshing floor in order
to prevent due division thereof at the proper time the
respondent was always prepared for the division of the crop
as provided by law and the removal by him cannumber in the
circumstances be said to be for the purpose of preventing
due division of the crop particularly when the measurements
had also taken place. removal of crop by the tenant can
fall within the meaning. of the section only if it is done for the purpose therein
specified and it is plain that the removal in the present
case was clearly number for that purpose. we are therefore of
opinion that on the facts of this case it cannumber be said
that there was any transgression of s. 7 of the fair rent
act. it is further urged on behalf of the appellant that even
though the respondent might have been justified in removing
60 per cent of the crop which was his share his removal of
the appellants share was a transgression of s. 7 of the
act. we cannumber accept this. section 7 forbids removal of
any portion of the crop. there is numberquestion therefore of
the share of the appellant or the respondent either the
removal as a whole will transgress s. 7 or it will number and
that will depend upon the fact whether the removal was in
order to prevent due division of the crop at the proper
time. in the present case we have already indicated that
the removal was number to prevent due division. the respondent
was always prepared for due division and it was the
appellants agent who did number agree to division according to
law. in these circumstances this is number a case of removal
of the crop  particularly after it had been measured by the
revenue inspector  with a view to prevent its due division. there was therefore numbertransgression of s. 7 of the fair
rent act even if the appellants share was removed. then it is urged that even if there was numbertransgression of
s. 7 of the fair rent act the respondent was number entitled
to the protection of s. 3 of the protection act as he did
number pay rent within the time specified therein and had taken
numbersteps under s. 3 3  of the act. there is numberdoubt that
strictly speaking the case is companyered by s. 3 2  of the
protection act inasmuch as the rent was number paid within the
time allowed therein and was number even deposited in companyrt
under s. 3 3  of the protection act. what the respondent
did in the present case was to send a money order to the
appellant instead of depositing the money in companyrt under s.
3 3  as he should have done. even though the appellant was
number agreeing to the division of the crop the respondent did
number act under s. 3 3  as he should have and instead sent a
money order. that gave the appellant a cause of action to
make an application under s. 3 4  of the protection act. but even though the appellant was entitled to make
application under s. 3 4  of the protection act the revenue
divisional officer was number bound to evict the tenant for el.  b  of s. 3 4  gives him a discretion to give time to the
tenant to pay the arrears having regard to the relative
circumstances of the landlord and the cultivating tenant. this clearly means that the revenue divisional officer has
to take into account the circumstances of each case and then
exercise his discretion whether be should give time to the
tenant or number. in the present case
the revenue divisional officer did number companysider that ques-
tion as he took the view that he should number exercise the
discretion in favour of the respondent because he had number
acted as he should have acted and deposited the amount
under s. 3 3  in companyrt. this view of the revenue
divisional officer is in our opinion patently incorrect. number if the respondent had acted as he should have acted and
made a deposit under s. 3 3  of the protection act the
matter would have been dealt thereunder. the companyrt  which
includes the revenue divisional officer  would then have to
consider whether the amount deposited was companyrect and if it
was deficient the companyrt was bound to give time to the tenant
to make up the deficiency. it is only when the deficiency
is number made good within the time allowed that the landlord
would have the right to make an application under s. 3 4
for eviction. it is clear therefore that the discretion
allowed under cl.  b  of s. 3 4  only companyes into play where
the tenant for some reason or the other has number made a
deposit under s. 3 3 . to hold therefore-as the revenue
divisional officer seems to have held-that the discretion
will number be exercised in favour of the tenant because he had
failed to make a deposit under s. 3 3  of the act is a
patent violation of the provision in cl.  b  of s. 3 4  as
to the exercise of discretion. it is however urged that even if the revenue divisional
officer had misunderstood cl.  b  of s. 3 4  the high companyrt
could number interfere with the exercise of the discretion by
the revenue divisional officer under s. 6-b of the
protection act inasmuch as this provision gives revisional
jurisdiction to the high companyrt to the extent to which such
jurisdiction is companyferred on it by s. 115 of the companye of
civil procedure. there are two answers to this companytention.


criminal appellate jurisdiction criminal appeal number 505
of 1977.
appeal by special leave from the judgment and order dated
25-2-77 of the andhra pradesh high companyrt in crl. a. number 14
of 1976.
frank anthony and b. kanta rao for the appellant. p. rao g. n. rao and l. j. vadakara for the respondent. the order of the companyrt was delivered by
krishna iyer j.-leave is granted on the question of
sentence only. this is a case where the accused have been acquitted of
counterfeiting but have been companyvicted of possession of
materials for companynterfeiting. it makes little difference
from the point of view of guilt and injury to. society. the
trial companyrt awarded a sentence of 10 years rigorous
imprisonment and that has been affirmed by the high companyrt. we think that health and prolonged incarceration may
sometimes be self-defeating. the most hurtful part of
imprisonment is the initial stage when a person is companyfined
in prison. thereafter he gets sufficiently hardened and
callous with the result that by the time he is processed
through the years inside the prison he becomes more de-
humanised. the whole goal of punishment being curative is
thereby defeated. the accent must therefore be more and
more on rehabilitation rather than retributive punitivity
inside the prison. in this companytext it is helpful to
remember items 58 59 in the rules applicable to prisoners
under sentence framed as the standard minimum rules
of the treatment. of prisoners  u.n. document a company/76/1
annex. i.a.  the purpose and justification of a
sentence of imprisonment or a similar measure
derivative of liberty is ultimately to protect
society against crime. this end can only be
achieved if the period of imprisonment is used
to ensure so-far as possible that upon his
return to society the offender is number only
willing but able to lead a law-abiding and
self-supporting life

to this end the institution should
utilize all the remedial educational moral
spiritual and other forces and forms of
assistance which are appropriate and
available and should seek to apply them
according to the individual treatment needs
of the prisoners.