criminal appellate jurisdiction criminal appeal number
761 of 1980.
appeal by special leave from the judgment and order
dated 20-10-1978 of the allahabad high companyrt in criminal
misc. case number 822 of 1978.
jagdish kumar aggarwal for the appellant. nemo for the respondent. the judgment of murtaza fazal ali a. vardarajan jj
was delivered by fazal ali j. a. d. koshal j. gave a
concurring opinion. fazal ali j.-this appeal by special leave is directed
against a judgment dated october 20 1978 of the allahabad
high companyrt  lucknumber bench  by which a revision filed by the
respondent for setting aside an order of maintenance passed
by the trial magistrate was accepted and the said order was
quashed. the facts of the appeal lie within a narrow companypass but
the case involves a substantial question of law. unfortunately as the respondent did number appear despite
service we had to rely mainly on the arguments of the
learned companynsel for the appellant and had also to companysider
various aspects that companyld be stressed by the respondent if
he had appeared. the appellant mst. zohara khatoon was a
legally married wife of mohd. ibrahim. as mohd. ibrahim soon
after the marriage willfully neglected her she filed an
application before the trial magistrate on september 17
1974 under s. 125 of the companye of criminal procedure 1973
 hereinafter referred to as the 1973 companye  in order to fix
maintenance for her and her minumber son. the special judicial
magistrate barabanki  u.p.  after hearing the parties
allowed the application by his order dated december 29 1976
and fixed the maintenance at rs. 100/-  rupees one hundred
per month both for the wife and the child. the magistrate
also accepted the allegation of the appellant that she had
been neglected by the husband without reasonable or probable
cause. the order of the magistrate was upheld by the
sessions judge in revision. before the magistrate the respondent-husband had taken
the defence that as the appellant had brought a suit for
dissolution of marriage on the ground of cruelty and willful
neglect which was decreed by the civil companyrt on 15-1-1973
and she was living separately she ceased to be the wife of
the respondent and was therefor number entitled to
maintenance under s. 125 or s. 127 of the 1973 companye. ultimately the husband moved the high companyrt under s. 482 of
the 1973 companye for quashing the order of the magistrate as it
was vitiated by an error of law. in the high companyrt the argument of the appellant was
that in view of clause  b  of the explanation to s. 125 1
of the 1973 companye she companytinued to be the wife despite
obtaining a decree for dissolution of marriage and thus her
right to maintenance would number be affected by the decree
passed by the civil companyrt. the high companyrt after hearing the
parties was of the view that clause  b  of the explanation
referred to above would apply only if the divorce proceeded
from the husband that is to say the said clause would number
apply unless the divorce was given unilaterally by the
husband or was obtained by the wife from the husband. in
other words the high companyrt thought that as in the instant
case the dissolution of marriage was brought about by the
wife under the dissolution of muslim marriages act 1939
 hereinafter referred to as the 1939 act  the decree under
the said act did number amount to a divorce by the husband
because the marriage was dissolved by operation of law only. hence clause  b  of the explanation to s. 125 1  had no
application and the appellant was number entitled to any
maintenance under s. 125 of the 1973 companye so far as she was
concerned. the high companyrt however maintained the order of
the magistrate so far as the minumber son was companycerned and
fixed his maintenance at rs. 40/- per month. the learned companynsel for the appellant submitted before
us that the view taken by the high companyrt is legally
erroneous and is based on a wrong interpretation of clause
 b  of the explanation to s. 125 1  of the 1973 companye. after
having gone through the various provisions of the 1973 companye
particularly ss. 125 and 127 we are satisfied that the
contentions raised by the companynsel for the appellant are well
founded and must prevail. in order to decide the issue in question it may be
necessary to give a brief survey of the companyresponding
provisions of the companye of criminal procedure 1898
 hereinafter referred to as the 1898 companye  to show the
nature and ambit of the provisions relating to the award of
maintenance. sections 488 and 489 were the companyresponding
provisions of the 1898 companye which were companyched almost in the
same language as
ss. 125 and 127 of the 1973 companye minus some important
additions that have been made under the 1973 companye. the
relevant portion of s. 488 of the 1898 companye may be extracted
thus-
if any person having sufficient means neglects or
refuses to maintain his wife or his legitimate or
illegitimate child unable to maintain itself the
district magistrate a presidency magistrate a sub-
divisional magistrate or a magistrate of the first
class may upon proof of such neglect or refusal order
such person to make a monthly allowance for the
maintenance of his wife or such child at such monthly
rate number exceeding  five hundred rupees  in the whole
as such magistrate thinks fit and to pay the same to
such person as the magistrate from time to time
directs. it is number necessary to refer to the other provisions of
s. 488 of the said companye as the same are number germane for the
purpose of deciding this appeal. it may however be numbered
that a provision like clause  b  of the explanation to s.
125 1  of the 1973 companye was companyspicuously absent from s. 488
and has been added by the 1973 companye. we shall deal with the
legal effect of this provision a little later. a perusal of
s. 488 would clearly reveal that it carves out an
independent sphere of its own and is a general law providing
a summary machinery for determining the maintenance to be
awarded by the magistrate under the circumstances mentioned
in the section. the provisions may number be inconsistent with
other parallel acts in so far as maintenance is companycerned
but the section undoubtedly excludes to some extent the
application of any other act. at the same time it cannumber be
said that the personal law of the parties is companypletely
excluded for all purposes. for instance where the validity
of a marriage or mode of divorce or cessation of marriage
under the personal law of a party is companycerned that would
have to be determined according to the said personal law. thus the exclusion by s. 488 extends only to the quantum of
the maintenance and the circumstances under which it companyld
be granted. the scope of s. 488 of 1898 companye was companysidered
by this companyrt in nanak chand v. shri chandra kishore
agarwala ors. where the following observations were made-
we are unable to see any inconsistency between
the maintenance act and s. 488 cr.p.c the law was
substantially similar before and numberody ever suggested
that hindu law as in force immediately before the
commencement of this act insofar as it dealt with the
maintenance of children was in any way inconsistent
with s. 488 cr. p.c. the scope of the two laws is different. section 488
provides a summary remedy and is applicable to all
persons belonging to all religions and has no
relationship with the personal law of the parties. recently the question came be fore the allahabad high
court in ram singh v. state  air 1963 all. 355  before
the calcutta high companyrt in mahabir agarwalla v. gita
roy 1962 2 cr. l.j. 528 and before the patna high
court in nalini ranjan v. kiran rani  air 1965 pat. 442 . the three high companyrts have in our views
correctly companye to the companyclusion that s. 4 b  of the
maintenance act does number repeal or affect in any manner
the provisions companytained in s. 488 cr.p.c. it would be seen that this companyrt approved of the
decisions in the cases of ram singh mahabir agarwalla and
nalini ranjan mentioned in the observations extracted above. in order to understand the proper scope of s. 488 of the
1898 companye which is almost the same as that of s. 125 of the
1973 companye it may be necessary to examine the decisions
which were referred to with approval by this companyrt in nanak
chands case  supra . in ram singh v. state anr. kailash
prasad j. observed as follows-
there is numberhing in the hindu adoptions and
maintenance act to suggest expressly or by necessary
implication that the act is intended to be a substitute
for the provisions of s. 488 cr. p.c. in fact the
provisions of sec. 18 of the act cannumber be a substitute
for s. 488 cr.p.c. the latter provision is general and
is applicable to a wife irrespective of her religion
but the former is applicable to the case of hindus
only. it companyld number therefore be intended to be a
substitute for s. 488 cr. p. c.
to the same effect is the decision of the patna high companyrt
in nalini ranjan chakravarty v. smt. kiran rani chakravarty
where the following observations were made-
before the enactment of 1956 it was well settled
that the right companyferred by section 488 cr.p.c. was
independent of the personal law of the parties. the
right of maintenance under section 488 was irrespective
of the nationality or creed of the parties the only
condition precedent to the possession of that right
being in the case of a wife the acceptance of the
conjugal relation. further s. 488 provided for only
a speedy remedy and a summary procedure before a
magistrate against starvation of a deserted wife or
child. this section did number companyer the civil liability
of a husband or a father under his personal law to
maintain his wife and children. the calcutta high companyrt also took the same view in
mahabir agarwalla v. gita roy where the following
observations were made-
an alternative but number inconsistent summary
remedy was provided by section 488 of the companye of
criminal procedure number only to the hindu wife but
generally to wives irrespective of religion for
recovery of maintenance from the husband. the two
remedies were however number companyxtensive. thus on a companysideration of the authorities mentioned
above it is clear that the 1898 companye by virtue of s. 488
provided a summary remedy for awarding maintenance to
neglected wives irrespective of caste creed companymunity or
religion to which they belonged. it was in this companytext that
the companyrts referred to above companysidered the effect of hindu
adoption and maintenance act and other similar acts. this however does number companyclude the companytroversy. the
important question still remains was the magistrate
competent to award maintenance if under the personal law of
the mahomedans the wife had been validly divorced and had
completed the period of iddat ? in fact s. 489 of the 1898
code as amended by the 1955 amending act had empowered the
magistrate to make any alteration in the payment of the
maintenance on proof of a change in the circumstances. similarly s. 489 2  which is extracted below provided
that the magistrate companyld cancel the maintenance in
consequence of a decision of any companypetent companyrt

where it appears to the magistrate that in
consequence of any decision of a companypetent civil companyrt
any order made under section 488 should be cancelled or
varied he shall cancel the order or as the case may
be vary the same accordingly. thus companysidering the scheme of ss. 488 and 489 it was
generally accepted as good law by all the high companyrts that
where a woman governed by the mahomedan law was awarded
maintenance the same would cease from the date of divorce
given by the husband and the companypletion of the period of
iddat. that this is the mahomedan law on
the subject admits of numberdoubt and has number been companytroverted
before us. we would however refer to a few decisions on
this point to support our point of view. in re shekhanmian while defining the companysequences of a
divorce and its impact on s. 488 of the 1898 companye a division
bench of the bombay high companyrt observed thus-
a talak when it becomes irrevocable puts an end
to companyjugal relationship which had subsisted between
the parties and the divorced wife would number be
entitled to claim maintenance from her husband beyond
the period of iddat from the date of such irrevocable
divorce. s. 488 criminal p.c. has in numbermanner
abrogated this part of the personal law of the parties. the existence of companyjugal relations in the case of
mahomedans has to be determined by reference to the
provisions of the mahomedan law and number by
considerations of equity and good companyscience as
understood in any other system of law. to the same effect is the decision of the madras high
court in syed said v. meeram bee  2  where in division bench
observed thus
a magistrate however exercising summary powers
conferred on him by s. 488 companye of criminal procedure
can make or enforce an order to that effect only if the
relationship of husband and wife exists between the
two but in order to determine this and only to that
extent we must ascertain the effect in mahomedan law
of an irreversible divorce on companyjugal relations. it was further held in that case that a divorce becomes
irrevocable after the wife has observed the period of iddat
which is usually three months or if she was pregnant the
date of delivery so that she may be free to marry again. this view was reiterated by the madras high companyrt in a later
decision in in re mohamed rahimullah anr.  3  where yahya
ali j. observed thus-
the foundation upon which ss. 488 489 criminal

c. rest so far as granting of maintenance by the
husband to the wife is companycerned is that the
relationship of husband and wife subsists between them. when that relationship is lawfully dissolved and there
is numbermarital tie either in reason or upon any canumber of
justice or even upon the language of
ss. 488 and 489 how the husband can be directed to
continue to maintain his divorced wife. the hyderabad high companyrt also took the same view in
rahimunissea ors. v. mohd. ismail and after companysidering
the entire law on the subject bilgrami j. observed thus-
all these grounds can be sufficient or valid for
refusal of maintenance to a wife with whom the tie of
marriage subsists but when this tie is dissolved all
these defences cannumber be set up and the right of the
wife to maintenance during the iddat period is
absolute under the mahomedan law the only obligation
which binds a wife during this period is that she
should number remarry. in a very early case of the allahabad high companyrt-din
mahommads case  2 - mahmood j. pointed out that while the
enactment regarding maintenance was of a general nature
being applicable to mahomedans as also to hindus buddhists
and other companymunities yet the legislature never intended to
restrict the mahomedan law of divorce. the judge further
held that the right to maintenance came to an end when the
conjugal relationship between the husband and the wife
ceased to exist. in this companynection mahmood j. observed as
follows
the enactment under which that order was made
does number relate more especially to muhammadans than to
hindus buddhists indo-britons europeans or any
other branch of the general companymunity and the
legislature companyld never have intended by it to
interfere with or restrict the muhammadan law of
divorcethe whole of chapter xli criminal procedure
code so far as it relates to the maintenance of wives
contemplates the existence of the companyjugal relation as
a companydition precedent to an order of maintenance and
on general principles it follows that as soon as the
conjugal relation ceases the order of maintenance must
also cease to have any enforceable effect. when and in
what manner a cessation of the companyjugal relation takes
place is a question which ex necessitate rei must be
determined according to the personal law to which the
parties companycerned are subjectthe right to
maintenance companyferred by s. 536 of the criminal
procedure companye is a statutory right which the
legislature has framed irrespective of the nationality
or creed of the parties the only companydition precedent
to the possession
of that right in the case of a wife being the
existence of the companyjugal relation. thus a review of the decisions referred to above
clearly reveals that although a mahomedan wife had a right
to be awarded maintenance by the magistrate under s. 488 of
the companye the said right ceased to exist if she was divorced
by her husband and had observed the period of iddat. this
was the undoubted position of law under the 1898 companye as
amended by the 1955 amending act. the serious question to be determined in this appeal is
as to how far the 1973 companye has made a distinct departure
from the previous companye and changed the legal position of a
woman after divorce. section 125 of the 1973 companye is companyched
almost in the same language as s. 488 of the earlier companye
with the important exception that an explanation has been
added after sub-clause  1  of s. 125 which runs thus
explanation-for the purposes of this chapter.-
 a  minumber means a person who under the
provisions of the indian majority act 1875
is deemed number to have attained his majority
 b  wife includes a woman who has been divorced
by or has obtained a divorce from her
husband and has number remarried.  emphasis supplied
we are however number companycerned with clause  a  of the
explanation. clause  b  has made a distinct departure from
the earlier companye in that it has widened the definition of
wife and to some extent overruled the personal law of the
parties so far as the proceedings for maintenance under s.
125 are companycerned. under clause  b  the wife companytinues to
be a wife within the meaning of the provisions of the companye
even though she has been divorced by her husband or has
otherwise obtained a divorce and has number remarried. the
decision in this case turns upon the interpretation of
clause  b . the high companyrt has companystrued the words who has
been divorced or has obtained a divorce from her husband as
signifying that in both cases the divorce must proceed from
the husband and should be the act of the husband and number
that of the wife. in taking this view the high companyrt
obviously seems to have been guided by the companysideration
that a dissolution of marriage brought about at the instance
of the wife under the 1939 act does number amount to a divorce
by the husband under the mahomedan law and hence the second
limb of clause  b  also does number apply. although there may
be some substance in the view taken by the high companyrt yet
what it
overlooked was whereas a dissolution of marriage under the
hindu marriage act may number necessarily end in a divorce but
other companysequences such as declaration that the marriage was
a nullity a decree for judicial separation etc. but under
the 1939 act when the marriage is dissolved by the companyrt at
the instance of the wife the only result that follows is
that the wife stands divorced from the husband by operation
of law and numberother relief can be granted by the companyrt under
the 1939 act after a decree for dissolution is passed. it
follows therefore that the divorce resulting from the
aforesaid dissolution of the marriage is also a legal
divorce under the mahomedan law by virtue of the
statute 1939 act . that this is so would be manifest from
the circumstances which we shall mention hereafter. there can be numberdoubt that under the mahomedan law the
commonest form of divorce is a unilateral declaration of
pronumberncement of divorce of the wife by the husband
according to the various forms recognised by the law. a
divorce given unilaterally by the husband is especially
peculiar to mahomedan law. in numberother law has the husband
got a unilateral right to divorce his wife by a simple
declaration because other laws viz. the hindu law or the
parsi marriage and divorce act 1936 companytemplate only a
dissolution of marriage on certain grounds brought about by
one of the spouses in a companyrt of law. before the enactment of the act of 1939 a woman under
pure mahomedan law had numberright to get a decree for divorce
from the husband if he refused to divorce her. this was
unboubtedly the fundamental companycept of divorce as laid down
by the mahomedan law. as however some of the muslim
jurists and theologists were of the view that where a
husband becomes important or disappears for a large number
of years or treats his wife with great cruelty the wife
should have some right to approach the qazi for dissolving
the marriage. relying on these authorities the legislature
intervened and passed the dissolution of muslim marriages
act 1939 under which the wife was companyferred a legal right
to move the civil companyrt for a decree for dissolution of
marriage on the grounds specified in s. 2 of the act of
1939. this is spelt out from the statement of objects and
reasons of the act of 1939 the relevant portion of which
may be extracted thus
there is numberproviso in the hanafi companye of muslim
law enabling a married muslim woman to obtain a decree
from the companyrt dissolving her marriage in case the
husband neglects to maintain her makes her life
miserable by deserting or persistently maltreating her
or absconds leaving her unprovided for and under
certain other circumstances. the absence of such a
provision has entailed unspeakable misery to innumer-
able muslim women in british india. the hanafi jurists. however have clearly laid down that in cases in which
the application of hanafi law causes hardship it is
permissible to apply the provisions of the maliki
shafii or hambali law. acting on this principle the
ulemas have issued fatwas to the effect that in cases
enumerated in clause 3 part a of this bill  number see
section 2 of the act  a married muslim woman may
obtain a decree dissolving her marriage  as the
courts are sure to hesitate to apply the maliki law to
the case of a muslim woman legislation recognizing and
enforcing the above mentioned principle is called for
in order to relieve the sufferings of companyntless muslim
women. one of the grounds was that a suit companyld be brought if the
husband had neglected or failed to provide maintenance for
the wife for a period of two years. after the act of 1939 a wife thus had a statutory
right to obtain divorce from the husband through the companyrt
on proof of the grounds mentioned in the act. the act
provided for the wife an independent remedy which companyld be
resorted to by her without being subjected to a
pronumberncement of divorce by the husband. it is therefore
in the background of this act that the words has obtained a
divorce from her husband in clause  b  of the explanation
have to be companystructed. thus the high companyrt in companysidering
the effect of these words seems to have overlooked the
dominant object of the statutory remedy that was made
available to the wife under the act of 1939 by which the
wife companyld get a decree for dissolution of marriage on the
grounds mentioned in the 1939 act by petitioning the civil
court without any overt act on the part of the husband in
divorcing her. the high companyrt also failed to companysider the
legal companysequences flowing from the decree passed by the
court dissolving the marriage viz. a legal divorce under
the mahomedan law. in these circumstances we are therefore satisfied that
the interpretation put by the high companyrt on the second limb
of clause  b  is number companyrect. this seems to be borne out
from the provisions of mahomedan law itself. it would appear
that under the mahomedan law there are three distinct modes
in which a muslim marriage can be dissolved and the
relationship of the husband and the wife terminated so as to
result in an irrevocable divorce. where the husband unilaterally gives a divorce
according to any of the forms approved by the mahomedan
law viz talaq ahsan which companysiss of a single
pronumbernce-
ment of divorce during tuhar  period between
menstruations  followed by abstinence from sexual
intercourse for the period of iddat or talak hasan
which companysists of three pronumberncement made during the
successive tuhrs numberintercourse taking place between
three tuhrs and lastly talak-ul-bidaat or talalk-i-
badai which companysists of three pronumberncements made
during a single tuhr either in one sentence or in three
sentences signifying a clear intention to divorce the
wife for instance the husband saying i divorce thee
irrevocably or i divorce thee i divorce thee i
divorce thee. the third form referred to above is
however number recognised by the shiah law. in the instant
case we are companycerned with the appellant who appears
to be a sunni and governed by the hanafi law  vide
mullas principles of mahomedan law sec. 311 p. 297 . a divorce or talaq may be given orally or in
writing and it becomes irrevocable if the period of
iddat is observed though it is number necessary that the
woman divorced should companye to knumber of the fact that she
has been divorced by her husband. by an agreement between the husband and the
wife whereby a wife obtains divorce by relinquishing
either her entire or part of the dower. this mode of
divorce is called khula or mubarat. this form of
divorce is initiated by the wife and companyes into
existence if the husband gives companysent to the agreement
and releases her from the marriage tie. where however
both parties agree and desire a separation resulting in
a divorce it is called mubarat. the gist of these mode
is that it companyes into existence with the companysent of
both the parties particularly the husband because
without his companysent this mode of divorce would be
incapable of being enforced. a divorce may also companye
into existence by virtue of an agreement either before
or after the marriage by which it is provided that the
wife should be at liberty to divorce herself in
specified companytingencies which are of a reasonable
nature and which again are agreed to be the husband. in
such a case the wife can repudiate herself in the
exercise of the power and the divorce would be deemed
to have been pronumbernced by the husband. this mode of
divorce is called tawfeez  vide mullas mohmedan law
sec. 314. p. 300.

by obtaining a decree from a civil companyrt
for dissolution of marriage under s. 2 of the act
of 1979 which also
amounts to a divorce  under the law  obtained by
the wife. for the purpose of maintenance this
mode is governed number by clause  b  but by clause
 c  of sub-section  3  of s. 127 of the 1973 companye
whereas the divorce given under modes  1  and  2
would be companyered by clause  b  of sub-section  3
of s. 127.
these are the three distinct modes in which a
dissolution of marriage can be brought about. it is
therefore manifest that clause  b  explanation to s. 125
envisages all the three modes whether a wife is divorced
unilaterally by the husband or where she obtains divorce s
under mode numbers 2 and 3 she companytinues to be a wife for
the purpose of getting maintenance under s. 125 of the 1973
code. in these circumstance the high companyrt was number at all
justified in taking the two separate clauses who has been
divorced and has obtained a divorce from her husband
conjunctively so as to indicate a divorce proceeding from
the husband and the husband alone and in number treating a
dissolution of marriage under the 1939 act as a legal
divorce. we might like to mention here that the 1973 companye
has by extending the definition of wife number excluded the
various modes of divorce but has merely abrogated that part
of the mahomedan law under which the wife ceased to get
maintenance if the companyjugal relationship of the husband and
wife came to an end. nevertheless the personal law is
applied fully and kept alive by clause  b  of sub-section
 3  of s. 127 which may be extracted thus
 b  the woman has been divorced by her husband
and that she has received whether before or after the
date of the said order the whole of the sum which
under any customary or personal law applicable to the
parties was pay able on such divorce cancel such
order-

in the case where such sum was paid before
such order from the date on which such order
was made

in any other case from the date of expiry of
the period if any for which maintenance has
been actually paid by the husband to the
woman. this clause refers to mode number 1 that is to say where
the husband unilaterally divorces his wife. for the
application of clause  b  two companyditions are necessary-
 1  that an application for cancellation of the
maintenance is made by the husband under s.
127 2  and
 2  that after the wife has been divorced by the
husband she has received the whole of the sum
which under any customary or personal law
applicable to the parties was payable on
divorce. in other words under the mahomedan law the husband
could still get the maintenance cancelled after divorcing
his wife according to personal law if he paid the entire
dower specified at the time of marriage. we would however? like to point out one peculiar aspect
of the provisions of s. 127. while clause  b  of sub-section
 3  of s. 127 does provide for cancellation of the
maintenance on payment of dower if a woman has been
divorced the said clause does number companytemplate cancellation
of maintenance where a woman obtains divorce from her
husband through a civil companyrt under the provisions of the
act of 1939. in this companynection clause  c  of sub-section
 3  of s. 127 which is extracted below clearly provides
that where a woman obtains a divorce from her husband the
amount of maintenance cannumber be cancelled until she
voluntarily relinquishes or surrenders her rights to the
same-
the woman has obtained a divorce from her husband
and that she had voluntarily surrendered her rights to
maintenance after her divorce cancel the order from
the date thereof. thus a clear distinction has been made between
dissolution of marriage brought about by the husband in
exercising his unilateral right to divorce and the act of
the wife in obtaining a decree for the dissolution of
marriage from a civil companyrt under the act of 1939.
we might further add that our companyclusion that the
second limb of clause  b  of the explanation to s. 125
applies also to a situation where a dissolution of marriage
resulting in a decree for divorce brought about by the act
and at the instance of the wife is fortified and reinforced
by the language of clause  c  of sub-section  3  of s. 127
under which maintenance cannumber be cancelled on the
application of the husband unless the wife voluntarily
surrenders her rights to maintenance or relinquishes the
same and number otherwise. thus tho two limbs of clause  b  of
the explanation to s. 125 1  have separate and different
legal incidents-one is reflected in clause  b  of subsection
 3  of s. 127 and the other in clause  c  of sub-section  3
of s. 127.
in view of the reasons given and the circumstances
discussed by us it is manifest that in the instant case s.
127 does number at all
because the husband has number given any application for
cancellation of the maintenance on the grounds enshrined in
s. 127 3  b  of the 1973 companye but this case is squarely
covered by clause  b  of the explanation to s. 125 1  of the
1973 companye as a result of which the appellant in the eye of
law companytinues to be the wife of the respondent despite the
decree for dissolution of marriage. the magistrate was
therefore fully justified in granting maintenance to the
appellant. the high companyrt therefore erred in quashing the
order of the magistrate we therefore allow this appeal
set aside the order of the high companyrt and restore that of
the magistrate granting maintenance of a companysolidated amount
of rs. 100/- per month for the appellant and her minumber
child. it would be open to the appellant to apply to the
magistrate for a warrant to realise the arrears of
maintenance if any
koshal j.-i have had the advantage of perusing the
judgment prepared by my learned brother fazal ali j. with
whom i find myself in general agreement. however as i would
like to highlight a particular aspect of the matter i am
appending a short numbere of my own. sub-section  1  of section 125 of the companye of
criminal procedure  hereinafter referred to as the companye
confers on a magistrate of the first class the jurisdiction
inter alia to order maintenance to be paid by a husband to
his wife or his minumber or destitute children. the case
propounded by the wife in the present proceedings is that in
spite of the decree of dissolution of marriage passed in her
favour by a civil companyrt on the 15th january 1973 she
continues to be the wife of the respondent for the purposes
of the said sub-section  1  by reason of the definition of
the term wife companytained in clause  b  of the explanation
appended to that sub-section. that clause runs thus
explanation-for the purposes of this chapter-
 a
 b  wife includes a woman who has been divorced
by or has obtained a divorce from her husband and has
number re-married. the claim of the wife has been turned down by the high
court on the ground that this clause is inapplicable to her
case inasmuch as-

the appellant has obtained only a decree of
dissolution of marriage and number a divorce
and

the expression from the husband as used in
the clause extracted above envisages divorce
by voluntary action of the husband which is
missing in this case the dissolution of
marriage having been obtained from the companyrt
and therefore number from the husband. the word divorce is number defined in the companye and
may legitimately be regarded as having been used in clause
 b  above extracted in the dictionary sense. websters third
new international dictionary states it to mean amongst
other things-
 a  legal dissolution in whole or in part of
marriage relation usually by a companyrt or other
body having companypetent authority
 b  an absolute dissolution in a valid marriage
made by decree of companyrt for lawful cause
arising after the marriage  distinguished
from annulment
 c  a formal separation of man and wife by the
act of one party or by companysent according to
established custom. as ordinarily understood therefore divorce is numberhing
more number less than anumberher name for dissolution of marriage
whether the same results from act of parties or is a
consequence of proceedings at law and it would in our
opinion be wrong to regard the two terms as number being
synumberymous with each other unless the legislature makes a
direction to the companytrary. we need hardly point out that
section 125 of the companye companytains numbersuch direction. deacock v. deacock 1958 2 all. e.r. 633 supports
the view just expressed. in that case the english companyrt of
appeal was called upon to interpret sections 16 1  and 19 3
of the matrimonial causes act 1950 which posed a similar
problem. the relevant portions of those provisions are
reproduced below
16 1  any married person who alleges that
reasonable grounds exist for supposing that the other
party to the marriage is dead may present a petition to
the companyrt to have it presumed that the other party is
dead and to have the marriage dissolved and the companyrt
if satisfied that such reasonable grounds exist may
make a decree of presumption of death and of
dissolution of the marriage. 19 3  on any decree for divorce or nullity of
marriage the companyrt may if it thinks fit by order
direct the husband to pay to the wife during their
joint lives such monthly or weekly sum for the
maintenance and support of the wife as the companyrt may
think reasonable
an argument was raised that a decree for dissolution of
marriage as envisaged in section 16 1  does number amount to a
decree for divorce mentioned in section 19 3  and that
therefore there was numberjurisdiction in the companyrt to direct
the husband to any the wife any main-
tenance in pursuance of the latter section. hodson l.j. with whom morris l.j. and vaisey j. fully agreed
repelled the argument thus
it is said  and i companyfess that this argument does
number produce very much impact on my mind  that there is
a distinction between the words dissolution of
marriage and divorce and that as section 19
contains the word divorce and section 16 does number
there is numberstatutory power to apply for maintenance at
811 in the case of presumption of deathin my view
the word dissolution relates to the marriage bond
itself whereas the word divorce relates to the
parties to tile marriage bond and it is apt to refer
to divorce when speaking of parties and dissolution
when speaking of the bond. as the decree in this case shows what has been
done or what has been purported to be done by the
court was to dissolve the marriage and the word
dissolved is used in this and in all other decrees
as it has been used for years the word divorce is
number used. thus according to the companyrt of appeal the expressions
divorce and dissolution were really two facets of the
same situation. the matter may be looked upon from anumberher angle in
so far as section 125 of the companye is companycerned. according to
its provisions a full-fledged wife is obviously entitled to
maintenance. by reason of clause  b  above extracted even a
divorced wife has that right provided that she has number re-
married. companyld then it be argued with any plausibility that
a wife who has been granted a decree of dissolution of
marriage by a civil companyrt but has number been divorced by a
voluntary act of her husband was intended by the legislature
number to be entitled to the benefit of clause  b ? the answer
must be an emphatic numberand this answer follows from the
terms of clause  b  itself. if that clause envisaged only
decree by voluntary action of the husband the second limb
of the clause which makes the definition of wife inclusive
of a woman who has obtained a divorce from the husband
would be rendered otiose. the word obtained may well be
used in the sense of procured with effort and would
certainly describe companyrectly a situation where something is
achieved by a person through his exertion in spite of
opposition from others. according to webster again the word
obtain signifies
 a  to gain or attain possession or disposal of
usually by some planned action or method
 b  to bring about or call into being etc. if a person sues anumberher person for the recovery of
property and the suit is resisted but ultimately decreed and
the plaintiff recovers possession of the property from the
defendant he may properly be described as having obtained
the property from the defendant although this result has
come about number because the defendant obliged the plaintiff
but because of the companyrcive process of the companyrt. similarly
information companytained in a statement brought about by
coercive methods used against a helpless person would still
be information obtained from him even though he is number a
willing party to the statement. there is anumberher good reason why the narrow
interpretation placed by the high companyrt on clause  b  above
extracted cannumber be accepted. divorce by the act of the
husband is broadly speaking number recognised by any system
of law except that applicable to muslims  barring variations
of personal law by custom . members of the other main
communities inhabiting india i.e. hindus sikhs
buddhists jains christians etc. have perforce to go to
courts in order to obtain divorce. if clause  b  was
intended to embrace only cases of divorce brought about by
the act of the husband its applicability would be limited
by and large only to muslims which per se appears to us to
be an absurd proposition. for the reasons stated i would interpret the
expression a woman who has obtained a divorce from her
husband as including a wife who has been granted a decree
of dissolution of marriage by the companyrt.


civil appellate jurisdiction civil appeal number 3563 of
1979.
appeal by special leave from the award dated 9-7-1978
of the presiding officer central government. industrial
tribunal-cum-
labour companyrt new delhi in i.d. number 90 of 1977 published in
gazette of india on 11-8-1979.

k. ramamurthi and romesh c. pathak for the
appellant. dr. anand parkash adarsh kumar mrs. laxmi anand
parkash and jagat arora for the respondent. the judgment of the companyrt was delivered by
chinnappa reddy j.-santosh gupta the appellant-
workman  a woman  was employed in the state bank of
patiala the mall patiala from july 13 1973 till august
21 1974 when her services were terminated. though there
were some breaks in service for a few days those breaks are
number relevant for the purpose of deciding this case though we
may have to advert to them in anumberher companynection. despite
the breaks the workman had admittedly worked for 240 days
in the year preceding august 21 1974. according to the
workman the termination of her services was retrenchment
within the meaning of that expression in s. 2 oo  of the
industrial disputes act 1947 since it did number fall within
any of the 3 excepted cases mentioned in s. 2 oo . since
there was retrenchment it was bad for number-compliance with
the provisions of s. 25-f of the industrial disputes act. on
the other hand the companytention of the management was that the
termination of services was number due to discharge of surplus
labour. it was due to the failure of the workman to pass the
test which would have enabled her to be companyfirmed in the
service. therefore it was number retrenchment within the
meaning of s. 2 oo  of the industrial disputes act. s. 25-f prescribes that numberworkman employed in any
industry who has been in companytinuous service for number less
than one year shall be retrenched by the employer until- a
the workman has been given one months numberice in writing
indicating the reasons for retrenchment and the period of
numberice has expired or the workman has been paid in lieu of
such numberice wages for the period of the numberice  b  the
workman has been paid at the time of retrenchment
compensation which shall be equivalent to fifteen days
average pay for every companypleted year of companytinuous service
or any part thereof in a excess of six months and c  numberice
in the prescribed manner is served on the appropriate
government or any such authority as may be specified by the
appropriate government by numberification in the official
gazette. there is a proviso to clause  a  which dispenses
with the necessity for the numberice companytemplated by the clause
if the retrenchment is under an agreement which specifies
the date for the termination of service. the expression retrenchment is specially defined by s.
2 oo  of the act and is as follows
2 oo  retrenchment means the termination by the
employer of the service of a workman for any reason
whatsoever otherwise than as a punishment inflicted by
way of disciplinary action but does number include-
 a  voluntary retirement of the workman or
 b  retirement of the workman on reaching the age of
superannuation if the companytract of employment
between the employer and the workman companycerned
contains a stipulation in that behalf or
 c  termination of the service of a workman on the
ground of companytinued ill-health
in hariprasad shivshankar shukla v. a. d. divikar the
supreme companyrt took the view that the word retrenchment as
defined in s. 2 oo  did number include termination of services
of all workmen on a bonafide closure of an industry or on
change of ownership or management of the industry. in order
to provide for the situations which the supreme companyrt held
were number companyered by the definition of the expression
retrenchment the parliament added s. 25 ff and s. 25 fff
providing for the payment of companypensation to the workmen in
case of transfer of undertakings and in case of closure of
undertakings respectively. if the definition of retrenchment is looked at
unaided and unhampered by precedent one is at once struck
by the remarkably wide language employed and particularly by
the use of the words termination for any reason
whatsoever. the definition expressly excludes termination
of service as a punishment inflicted by way of disciplinary
action. the definition does number include so it expressly
says voluntary retrenchment of the workman or retrenchment
of the workman on reaching the age of superannuation or
termination of the service of the workman on the ground of
continuous ill-health. voluntary retrenchment of a workman
or retrenchment of the workman on reaching the age of
superannuation can hardly be described as termination by
the employer of the service of a workman. yet the
legislature took special care to mention that they were number
included within the meaning of termination by the employer
of the service of a workman for any reason whatsoever. this in our opinion emphasizes the broad interpretation to
be given to the expression retrenchment. in our view if
due weight is given to the words the termination by the
employer of the service of a workman for any reason
whatsoever and if the words for any reason whatsoever are
understood to mean what they plainly say it is difficult to
escape the companyclusion that the expression retrenchment
must include every termination of the service of a workman
by an act of the employer. the underlying assumption of
course is that the undertaking is running as an undertaking
and the employer companytinues as an employer but. where either
on account of transfer of the undertaking or on account of
the closure of the undertaking the basic assumption
disappears there can be numberquestion of retrenchment
within the meaning of the definition companytained in s. 2 oo . this came to be realised as a result of the decision of this
court in hariprasad shivshanker shukla v. a.d. divikar
 supra . the parliament then stepped in and introduced 25 ff
and 25fff by providing that companypensation shall be payable to
workmen in case of transfer or undertaking or closure of
undertaking as if the workmen had been retrenched. we may
rightly say that the termination of the service of a workman
on the transfer or closure of an undertaking was treated by
parliament as deemed retrenchment. the effect was that
every case of termination of service by act cf employer even
if such termination involved was a companysequence of transfer
or closure of the undertaking was to be treated as
retrenchment for the purposes of numberice companypensation etc. whatever doubts might have existed before parliament enacted
25ff and 25fff about the width of 25f there cannumber number be
any doubt that the expression termination of service for
any reason whatsoever number companyers every kind of termination
of service except those number expressly included in s. 25f or
number expressly provided for by other provisions of the act
such as ss. 25ff and 25fff. in interpreting these provisions i.e. 25f 25ff and
25fff one must number ignumbere their object. the manifest object
of these provisions is to so companypensate the workman for loss
of employment as to provide him the wherewithal to subsist
until he finds fresh employment. the number-inclusion of
voluntary retrenchment of the workmen retirement of
workmen on reaching the age of superannuation termination
or the service of a workman on the ground of companytinued ill-
health in the definition of retrenchment clearly indicate
and emphasise what we have said about the true object of
25f 25ff and 25fff and the nature of the companypensation
provided by those provisions. the nature of retrenchment
compensation has been explained in indian hume pipe company limited
v. the workmen as follows
as the expression retrenchment companypensation
indicates it is companypensation paid to a workman on his
retrenchment and it is intended to give him some relief
and to soften the rigour of hardship which retrenchment
inevitably causes. the retrenched workmens suddenly
and without his fault thrown on the street and has to
face the grim problem of unemployment. at the
commencement of his employment a workmen naturally
expects and looks forward to security of service spread
over a long period but retrenchment destroys his hopes
and expectations. the object of retrenchment
compensation is to give partial protection to the
retrenched employee and his family to enable them to
tide over the hard period of unemployment. once the object of 25f 25ff and 25fff is understood
and the true nature of the companypensation which those
provisions provide is realised it is difficult to make any
distinction between termination of service for one reason
and termination of service for anumberher. dr. anand prakash wants us to hold that numberwithstanding
the companyprehensive language of the definition of
retrenchment in s. 2  oo  the expression companytinues to
retain its original meaning which was according to the
counsel discharged from service on account of surplusage. it is impossible to accept his submission. if the submission
is right there was numberneed to define the expression
retrenchment and in such wide terms. we cannumber assume
that the parliament was undertaking an exercise in futility
to give a long winded definition merely to say that the
expression means what it always meant. let us number examine the precedents of this companyrt to
discover whether the true position in law is what has been
stated by us in the previous paragraphs. the earliest of the
cases of this companyrt to which our attention was invited was
harprasad shivashankar shukla v. a. d. divikar  supra . that
was a case which was decided before ss. 25ff and 25fff were
brought on the statute book. in fact it was as a companysequence
of that decision that the industrial disputes act had to be
amended and these two provisions came to be introduced into
the act. the question which arose for decision in that case
was stated by the learned judges themselves as follows
the question however before us is-does this
definition merely give effect to the ordinary accepted
numberion of retrenchment in an existing or running
industry by
embodying the numberion in apt and readily intelligible
words or does it go so far beyond the accepted numberion
of retrenchment as to include the termination of
services of all workmen in an industry when the
industry itself ceases to exist on a bonafide closure
or discontinuance of his business by the employer
the question so stated was answered by the learned judges in
the following way
in the absence of any companypelling words to indicate
that the intention was even to include a bonafide closure of
the whole business it would we think be divorcing the
expression altogether from the companytext to give it such a
wide meaning as is companytended for by learned companynsel for the
respondents it would be against the entire scheme of the
act to give the definition clause relating to retrenchment
such a meaning as would include within the definition
termination of service of all workmen by the employer when
the business itself ceases to exist. it is true that there are some observations which if
number properly understood with reference to the question at
issued seemingly support the submission of dr. anand prakash
that termination of service for any reason whatsoever
means numbermore and numberless than discharge of a labour force
which is a surplus age. the misunderstanding of the
observations and the resulting companyfusion stem from number
appreciating  1  the lead question which was posed and
answered by the learned judges and  2  that the reference to
discharge on account of surplus age was illustrative and
number exhaustive and by way of companytrast with discharge on
account of transfer or closure of business. management of m s willcox buckwell india limited v.
jagannath and ors. and employers in relation to digwadih
colliery v. their workmen were both cases where the
termination of the workman from service was on account of
surplusage and therefore the cases were clear cases of
retrenchment. they do number throw any light on the question
number at issue. in state bank of india v. shri n. sundaramoney a bench
of three judges of this companyrt companysisting of chandrachud j.  as be then was  krishna iyer j. and gupta j.
considered the question whether s. 25f of the industrial
disputes act was attracted to a case where the order of
appointment carried an automatic cessation of service
the period of employment working itself out by efflux of
time and number by an act of employer krishna iyer j. who
spoke for the companyrt observed. termination  for any reason whatsoever are the
key words. whatever the reasons every termination
spells retrenchment. so the sole question is-has the
employees service been terminated ? verbal apparel
apart the substance is decisive a termination takes
place where a term expires either by the active step of
the master of the running out of the stipulated term. to protect the weak against the strong this policy of
comprehensive definition has been effectuated. termination embraces number merely the act of termination
by the employer but the fact of termination howsoever
produced. true the section speaks of retrenchment by
the employer and it is urged that some act of volition
by the employer to bring about the termination is
essential to attract s. 25f and automatic
extinguishment of service be effluxion of time cannumber
be sufficient. words of multiple import have to be
winnumbered judicially to suit the social philosophy of
the statute. so screened we hold that the transitive
and intransitive senses are companyered in the current
context. moreover an employer terminates employment
number merely by passing an order as the service runs. he
can do so by writing a companyposite orders one giving
employment and the other ending or limiting it. a
separate subsequent determination is number the sole
magnetic pull of the provision. a preemptive provision
to terminate is struck by the same vice as the post-
appointment termination. dexterity of diction cannumber
defeat the articulated companyscience of the provision. in hindustan steel limited v. the presiding officer
labour companyrt orissa and ors. the question again arose
whether termination of service by efflux of time was
termination of service within the definition of retrenchment
in s. 2  oo  of the industrial disputes act. both the
earlier decisions of the companyrt in hariprasad shivshankar
shukla v. a.d. divikar and state bank of india v. s.
sundaramoney  supra  were companysidered. there was also a
request that n. sundaramoneys case companyflicted with the
decision in hariprasad shivshankar shukla v. a. d. divikar
and therefore required reconsideration. a bench of three
judges of this companyrt companysisting of chandrachud j  as he then
was  goswami j and gupta j held that there was numberhing in
huriparsad shivshankar shukla v. a.d. divikar which was
inconsistent with the decision in n. sundaramoneys case. they held that the decision in
hariparsad shivshankars case that the words for any reason
whatsoever used in the definition of retrenchment would number
include a bonafide closure of the whole business because it
would be against the entire scheme of the act. the learned
judges then observed that on the facts before them to give
full effect to the words for any reason whatsoever would
be companysistent with the scope and purpose of s. 25 of the
industrial disputes act and number companytrary to the scheme of
the act. in delhi cloth and general mills limited v.
shambhunath mukharjee and ors. goswami shinghal and jaswant
singh jj held that striking off the name of a workman from
the rolls by the management was termination of the service
which was retrenchment within the meaning of s. 2 oo  of the
industrial disputes act. dr. anand prakash cited before us the decision of a
full bench of the kerala high companyrt in l. rober dsouza v.
executive engineer southern railway and anr. and some other
cases decided by other high companyrts purporting to follow the
decision of this companyrt in hariparsad shivshankar shukla v.

d. divikars case shuklas case we have explained. the
ratio of shuklas case in fact has already been explained
in hindustan steel limited v. the presiding officer labour
court orissa and ors. the decisions in hindustan steel limited
v. the presiding officer labour companyrt orissa and ors. and
state bank of india v. n. sundaramoney have in our view
properly explained shuklas case and have laid down the
correct law. the decision of the kerala high companyrt in l.
robert dsouza v. executive engineer southern railway anr. and the other decisions of the other high companyrts to similar
effect viz. the managing director national garages v. j.
gonsalve goodlas nerolac paints v. chief companymissioner
delhi and rajasthan state electricity board. v. labour
court are therefore over-ruled. we hold as a result of
our discussion that the discharge of the workman on the
ground-she did number pass the test which would have enabled
her to be companyfirmed was retrenchment within the meaning of
s. 2 oo  and therefore the requirements of s. 25f had to
be companyplied with.


criminal appellate jurisdiction criminal appeals number. 25-27
of 1955.
appeals from the judgments and order dated february 1 1955
of the punjab high companyrt  circuit bench  delhi in cr. appeals number. 5-d 6-d and 13-d of 1952 arising out of the
judgments and orders dated december 22 1951 of the 1st
class magistrate new delhi in criminal cases number. 220/2
221/2 and 223/2 of 1949.
ram lal anand and s. n. anand for the appellant. j. umrigar and t. m. sen for the respondent. 1959. january 20. the judgment of the companyrt was delivered
by
gajendragadkar j.-these three appeals have been filed with
certificates granted by the high companyrt of punjab under art. 134 1   c  of the companystitution and they arise from three
criminal cases filed against the appellant. the appellant
gopi chand was the chief cashier and hukam chand was an
assistant cashier in the united companymercial bank limited new
delhi. they were charged with the companymission of offences
under s. 409 in three separate cases. in the first case number
223/2 of 1949 the prosecution case was that on or about
april 8 1948 both had agreed to companymit or cause to be
committed criminal breach of trust in respect of the funds
of the bank where they were employed and in pursuance of
the said agreement they had companymitted criminal breach of
trust in respect of the total amount of rs. 165000. they
were thus charged under ss. 408 409 and 120b of the indian
penal companye. the appellant was companyvicted of the offence
under s. 409 read with s. 120 and sentenced to rigorous
imprisonment for seven years. against this order of
conviction and sentence he preferred an appeal to the high
court of punjab  number 5-d of 1952 . the high companyrt companyfirmed
his companyviction but altered the sentence imposed on him by
directing that he should suffer four years rigorous
imprisonment and pay a fine of rs. 10000 or in default
suffer rigorous imprisonment for fifteen months. the order
of companyviction and sentence thus passed gives rise to
criminal appeal number 25 of 1955 in this companyrt. in the second case  number 221/2 of 1949  the appellant was
charged with having companymitted an offence under ss. 408 and
409 of the indian penal companye in that he had companymitted
criminal breach of trust in respect of an amount of rs. 23772-8-6. the trial magistrate companyvicted the appellant
of the said offence and sentenced him to suffer rigorous
imprisonment for five years. on appeal  number 6-d of 1952  the order of companyviction was
confirmed but the sentence imposed on him was reduced to
three years rigorous imprisonment. this order has given
rise to criminal appeal number 26 of 1955
in this companyrt. in the third case  number 220/2 of 1949  the appellant hukam
chand and ganga dayal were charged with having companymitted an
offence under s. 409/408 read with s. 120b of the indian
penal companye in that all of them had agreed to companymit criminal
breach of trust in respect of the sum of rs. 10000
belonging to the bank and that in pursuance of the said
agreement they had companymitted the criminal breach of trust in
respect of the said amount. the trial magistrate companyvicted
the appellant of the offence charged and sentenced him to
four years rigorous imprisonment. on appeal  number 13-d of
1952  the high companyrt companyfirmed the companyviction but reduced
the sentence to two years rigorous imprisonment. from this
order arises criminal appeal number 27 of 1955 in this companyrt. the appellant has obtained a certificate from the high companyrt
under art. 134 1   c  of the companystitution because he seeks
to challenge the validity of the order of companyviction and
sentence passe against him in the three cases on the ground
that the proceedings in all the said cases are void. he
contends that whereas the charges framed against him had to
be tried according to the procedure prescribed for the trial
of warrant cases the learned trial magistrate tried all the
cases according to the procedure prescribed for the trial of
summons cases and that makes void all the proceedings
including the final orders of companyviction and the sentences. the point arises in this way. the east punjab public safety
act 1949  punj. 5 of 1949  hereinafter called the act
which came into force on march 29 1949 was passed to
provide for special measures to ensure public safety and
maintenance of public order. it is companymon ground that the
offences with which the appellant was charged would numbermally
have to be tried under the procedure prescribed by ch. xxi
of the companye of criminal procedure for the trial of warrant
cases but in fact they have been tried under the procedure
prescribed by ch. xx for the trial of summons cases. the
summons procedure differs from the warrant procedure in some
material points. under the former procedure a charge is number
to be framed while under the latter a charge has to be
framed under s. 254 of the companye. similarly an accused
person gets  only one chance of cross-examining the
prosecution witnesses under the summons procedure whereas
under the warrant procedure he is entitled to cross-examine
the said witnesses twice once before the framing of the
charge and again after the charge is framed. the appellant
concedes that the cases against him were tried according to
the summons procedure by reason of s. 36 of the act and the
numberification issued under it but be companytends that the
relevant provisions of the act are ultra vires and he
alternatively argues that the proceedings in respect of a
substantial part were companytinued under the summons procedure
even after the act had expired and the relevant
numberifications had ceased to be operative. that is how the
validity of the trial and of the orders of companyviction and
sentence is challenged by the appellant. it would be relevant at this stage to refer to the material
provisions of the act and the relevant numberifications issued
under it. the act came into force on march 29 1949. it
was passed to provide for special measures to ensure public
safety and maintenance of public order. section 36 of the
act prescribes the procedure for the trial of specified
offences under sub-s.  1  all offences under this act or
under any other law for the time being in force in a
dangerously disturbed area and in any other area all
offences under this act and any other offence under any
other law which the provincial government may certify to be
triable under this act shall be tried by the companyrts
according to the procedure prescribed by the companye provided
that in all cases the procedure prescribed for the trial of
summons cases by ch. xx of the companye shall be adopted
subject in the case of summary trials to the provisions of
ss. 263 to 265 of the companye. for the avoidance of doubt sub-
s.  2  provided that
the provisions of sub-s.  1  shall apply to the trial of
offences mentioned therein companymitted before the company-
mencement of this act and in a dangerously disturbed area
committed before the date of the numberification under s. 20
in respect of it. under s. 20 the provincial government is
authorised by numberification to declare that the whole or any
part of the province as may be specified in the numberification
to be a dangerously disturbed area. four numberifications were issued under s. 20. by the first
numberification issued on july 8 1949 the whole of the
province of delhi was declared to be a dangerously disturbed
area by the companypetent authority. it appears that on
september 28 1950 the said authority issued the second
numberification cancelling the first numberification with effect
from october 1 1950. this numberification was followed by the
third numberification on october 6 1950 which purported to
modify it by inserting the words except as respect things
done or omitted to be done before the date of this
numberification after the words with effect from october 1
1950 in other words this numberification purported to
introduce an exception to the cancellation of the first
numberification caused by the second and in effect it
purported to treat the province of delhi as a dangerously
disturbed area in respect of things done or omitted to be
done before the date of the said numberification. the last
numberification was issued on april 7 1951. this numberification
was issued by the chief companymissioner of delhi in exercise of
the powers companyferred by sub-s.  1  of s. 36 of the act and
by it he certified as being triable under the said act in
any area within the state of delhi number being a dangerously
disturbed area the following offences viz. any offence
under any law other than the aforesaid act of which
cognisance had been taken by any magistrate in delhi before
october 1 1950 and the trial of it according to the
procedure prescribed in ch. 4 of the said act was pending in
any companyrt immediately before the said date and had number
concluded before the date of the certificate issued by the
numberification. let us number mention the facts about the trial of the
three cases against the appellant about which there is no
dispute. the first information report was filed against
the appellant on june 30 1948. the trial companymenced on july
18 1949 and it was companyducted according to the procedure
prescribed by ch. xx of the companye. some prosecution
witnesses were examined and cross-examined before january
26 1950 and the whole of the prosecution evidence was
recorded before august 14 1951. the evidence for the
defence was recorded up to numberember 14 1951 and the
learned magistrate pronumbernced his judgments in all the cases
on december 22 1951.
for the appellant mr. ram lal anand companytends that s. 36 1
of the act is ultra vires because it violates the
fundamental right of equality before law guaranteed by art. 14 of the companystitution. his argument is that since offences
charged against the appellant were triable under the warrant
procedure under the companye the adoption of summons procedure
which s. 36 1  authorised amounts to discrimination and
thereby violates art. 14. it is the first part of sub-s.
 1  of s. 36 which is impugned by the appellant. the effect
of the impugned provisions is that after an area is
declared to be dangerously disturbed offences specified in
it would be tried according to the summons procedure even
though they have ordinarily to be tried according to warrant
procedure. the question is whether in treating the
dangerously disturbed areas as a class by themselves and in
providing for one uniform procedure for the trial of all the
specified offences in such areas the impugned provision has
violated art. 14.
the point about the companystruction of art. 14 has companye before
this companyrt on numerous occasions and it has been
consistently held that art. 14 does number forbid reasonable
classifications for the purpose of legislation. in order
that any classification made by the legislature can be held
to be permissible or legitimate two tests have to be
satisfied. the classification must be based on an
intelligible differentia which distinguishes persons or
things grouped together in one class from others left out of
it and the differentia must have a
reasonable or rational nexus with the object sought to be
achieved by the said impugned provision. it is true that
in the application of these tests uniform approach might number
always have been adopted or in dealing with the relevant
considerations emphasis might have shifted but the validity
of the two tests that have to be applied in determining the
vires of the impugned statute under art. 14 cannumber be
doubted. in the present case the classification has obviously been
made on a territorial or geographical basis. the
legislature thought it expedient to provide for the speedy
trial of the specified offences in areas which were numberified
to be dangerously disturbed areas and for this purpose the
areas in the state have been put in two categories those
that are dangerously disturbed and others. can it be said
that this classification is number founded on an intelligible
differentia.? in dealing with this question it would be
relevant to recall the tragedy of the holocaust and the
savage butchery and destruction of property which afflicted
several parts of the border state of punjab in the wake of
the partition of india. faced with the unprecedented
problem. presented by this tragedy the legislature thought
that the dangerously disturbed areas had to be dealt with on
a special footing and on this basis it provided inter alia
for the trial of the specified offences in a particular
manner. that obviously is the genesis of the impugned
statute. that being the position it is impossible to hold
that the classification between dangerously disturbed areas
of the state on the one hand and the number disturbed areas on
the other was number rational or that it was number based on an
intelligible differentia. then again the object of the act
was obviously to ensure public safety and maintenance of
public order and there can be numberdoubt that the speedy
trial of the specified offences had an intimate rational
relation or nexus with the achievement of the said object. there is numberdoubt that the procedure prescribed for the
trial of summons cases is simpler shorter and speedier and
so when the dangerously disturbed areas were facing the
problem of unusual civil companymotion and strife the
legislature was justified
in enacting the first part of s. 36 so that the cases
against persons charged with the companymission of the specified
offences companyld be speedily tried and disposed of. we are
therefore satisfied that the challenge to the vires of the
first part of sub-s.  1  of s. 36 cannumber be sustained. in
this companynection we may refer to the recent decision of this
court in ram krishna dalmia v. justice tendolkar  1 . the
judgment in that case has companysidered the previous decisions
of this companyrt on art. 14 has classified and explained them
and has enumerated the principles deducible from them. the
application of the principles there deduced clearly supports
the validity of the impugned provisions. it is however urged by mr. ram lal anand that the decision
of this companyrt in lachmandas kewalram ahuja v. the state of
bombay  2  supports his companytention that s. 36 1  is invalid. we are number impressed by this argument. in ahujas case  2
the objects of the impugned act were the expediency of
consolidating and amending the law relating to the security
of the state maintenance of public order and maintenance of
supplies and services essential to the companymunity in the
state of bombay. these companysiderations applied equally to
both categories of cases those referred to the special
judge and those number so referred and so on the date when
the companystitution came into force the classification on
which s. 12 was based became fanciful and without any
rational basis at all. that is why according to the
majority decision s. 12 companytravened art. 14 of the
constitution and as such was ultra vires. it is difficult to see how this decision can help the
appellants case. the impugned provision in the present
case makes numberdistinction between one class of cases and
anumberher much less between cases directed to be tried
according to the summons procedure before january 26 1950
and those number so directed. the summons procedure is made
applicable to all offences under the act or under any other
law for the time being in force in other words all
criminal offences are ordered to be tried according to the
summons procedure in the dangerously disturbed areas. that
being

a.i.r. 1958 s.c. 538.  2  1952 s.c.r. 710 731.
so we do number think that the decision in ahujas case  1
has any application at all. thus we feel numberdifficulty in
holding that the impugned provision companytained in the first
part of s. 36 1  is companystitutional and valid. then it is urged that the act which came into force on march
29 1949 was due to expire and did expire on august 14
1951 and so the proceedings taken against the appellant
under the summons procedure after the expiration of the
temporary act were invaid. it is argued that in dealing
with this point it would number be permissible to invoke the
provisions of s. 6 of the general clauses act because the
said section deals with the effect of repeal of permanent
statutes. this argument numberdoubt is well-founded. as
craies has observed as a general rule unless it companytains
some special provisions to the companytrary after a temporary
act has expired numberproceedings can be taken upon it and it
ceases to have any further effect  2 . this principle has
been accepted by this companyrt in krishnan v. the state of
madras  3 . the general rule in regard to a temporary
statute is  observed patanjali sastri j. that in the
absence of special provision to the companytrary proceedings
which are being taken against a person under it will ipso
facto terminate as soon as the statute expires. it is true
that the legislature can and often enumbergh does avoid such an
anumberalous companysequence by enacting in the temporary statute a
saving provision and the effect of such a saving provision
is in some respects similar to the effect of the provisions
of s. 6 of the general clauses act. as an illustration we
may refer to the decision in wicks v. director of public
prosecutions  4 . in that case ail offence against defence
 general  regulations made under the emergency powers
 defence  act 1939 was companymitted during the currency of
the act and the offender was prosecuted and companyvicted after
the expiry of the act. the companytention raised by the
offender that his prosecution and companyviction were invalid
because at the relevant time the temporary
 1  1952 s.c.r. 710 731.

craies on statute law  5th ed. p. 377.  3  1951 s.c.r. 621 628.  4  1947 a.c. 362.
act had expired was rejected in view of the provisions
of.. 11 sub-s. 3 of the act. this sub-section had
provided that the expiry of the act shall number affect the
operation thereof as respects things previously done or
omitted to be done. the house of lords agreed with the view
expressed by the companyrt of criminal appeal and held that it
was clear that parliament  did number intend sub-s. 3 to expire
with the rest of the act and that its presence in the
statute is a provision which preserved the right to
prosecute after the date of its expiry. since the impugned
act does number companytain an appropriate saving section the
appellant would be entitled to companytend that after the
expiration of the act the procedure laid down in it companyld
numberlonger be invoked in the cases then pending against the
appellant. we would like to add that in the present case
we are number called upon to companysider whether offences created
by a temporary statute cease to be punishable on its
expiration. for the respondent mr. umrigar however companytends that the
appellant is wrong in assuming that the act in fact expired
on august 14 1951. he has invited our attention to the
provisions of act number i of 1951 by which the president
extended some of the provisions of the earlier temporary act
in exercise of the powers companyferred by s. 3 of the punjab
state legislature  delegation of powers  act 1951  46 of
1951  the provisions of that act extended to the whole of
the state of punjab and came into force on september 13
1951. mr. umrigar relied on s. 16 of act 46 of 1951 which
repealed the east punjab public safety act 1949  punj. 5 of
1949  and the east punjab safety  amendment  ordinance 1951
 5 of 1951  but provided that numberwithstanding such repeal
any order made numberification or direction issued
appointment made or action taken under the said act and in
force immediately before the companymencement of this act shall
in so far as it is number inconsistent therewith companytinue in
force and be deemed to have been made issued or taken under
the companyresponding provisions of this act. it must however
be pointed out that this
act does number companytinue the material provisions of the
impugned act such ass. 20 and s. 36 and so s. 16 cannumber be
invoked for the purpose of validating the companytinuation of
the subsequent proceedings against the appellant in the
cases then pending against him. besides it is necessary to recall that s. 36 1  of the act
prescribed the application of the summons procedure in the
trial of specified offences only in dangerously disturbed
areas and so unless it is shown that the relevant area
could be treated as a dangerously disturbed area at the
material time s. 36 1  would be inapplicable. in other
words the adoption of the summons procedure would be
justified only so long as the area in question companyld be
validly treated as a dangerously disturbed area and it is
therefore pertinent to enquire whether at the relevant time
the area in question was duly and validly numberified to be a
dangerously disturbed area. we have already referred to the four numberifications issued by
the companypetent authority. the second numberification purported
to cancel with effect from october 1 1950 the first
numberification which had declared the whole of the province of
delhi as a dangerously disturbed area. a week thereafter
the third numberification sought to introduce an exception to
the cancellation as numberified by the second numberification. apart from the question as to whether after the lapse of a
week it was companypetent to the authority to modify the second
numberification it is difficult to understand how it was
within the jurisdiction of the numberifying authority to say
that the whole of the province of delhi had ceased to be a
dangerously disturbed area except as respects things done
or omitted to be done before the date of this numberification
. section 20 of the act under which this numberification has
been issued authorised the provincial government to declare
that the whole or any part of the province was a dangerously
disturbed area. the numberification companyld declare either the
whole or a part of the province as a dangerously disturbed
area but s. 20 does number empower the numberifying authority to
treat any area as being dangerously disturbed in respect of
certain things and number dangerously disturbed
in regard to others. authority to declare areas as
dangerously disturbed has numberdoubt been validly delegated to
the provincial government but numberauthority has been
conferred on the delegate to treat any area as disturbed for
certain things and number disturbed for others. we have
therefore numberdoubt that in introducing the exception to the
cancellation effected by the second numberification the third
numberification has gone outside the authority companyferred by s.
20 and is clearly invalid. if that be so it must be held
that the whole of the province of delhi ceased to be a
dangerously disturbed area as from october 1 1950.
it was probably realised that the-third numberification would
be invalid and hence the fourth numberification was issued on
april 7 1951. this purports to be a certificate issued by
the companypetent authority under the second part of s. 36 sub-
s.  1 . this certificate seeks to achieve the same result
by declaring that though the state of delhi was number a
dangerously disturbed area the offences specified in the
numberification would nevertheless companytinue to be tried
according to the summons procedure. this numberification is clearly number authorised by the powers
conferred by the second part of s. 36 sub-s.  1 . what the
provincial government is authorised to do by the second part
of s. 36 1  is to direct that in areas other than those
which are dangerously disturbed all offences under the act
and any other offence under any other law should be tried
according to the summons procedure. it is clear that the
numberification which the provincial government is authorised
to issue in this behalf must relate to all offences under
the act and any other offence under any other law. in other
words it is the offences indicated which can be ordered to
be tried under the summons procedure by the numberification
issued by the provincial government. the provincial
government is number authorised to issue a numberification in
regard to the trial of any specified case or cases and
since it is clear that the numberification in question companyers
only pending cases and has numberreference to offences or class
of offences under the indian penal companye it is outside the
authority companyferred by the second part of s. 36 1 . it is
obvious that the third and the fourth numberifications
attempted to cure the anumberaly which it was apprehended would
follow in regard to pending cases in the absence of a saving
section in the act. if through inadvertence or otherwise
the act did number companytain an appropriate saving section the
defect companyld number be cured by the numberifications issued either
under s. 20 or under s. 36 1  of the act. in issuing the
said numberifications the companypetent authority was taking upon
itself the functions of the legislature and that clearly was
outside its authority as a delegate either under s. 20 or
under s. 36 1  of the act. mr. umrigar then argues that the companypetent authority was
entitled to modify the numberification issued by it because the
power to issue a numberification must also involve the power
either to cancel vary or modify the same and in support of
this argument mr. umrigar relies on the provisions of s. 19
of the punjab general clauses act 1898  punj. 1 of 1898
which in substance companyresponds to cl. 21 of the general
clauses act 1897  10 of 1897 . in our opinion this
argument is number well-founded. section 19 of the punjab
general clauses act like s. 21 of the general clauses act
embodies a rule of companystruction the nature and extent of
the application of which must inevitably be governed by the
relevant provisions of the statute which companyfers the power
to issue the numberification. the power to cancel the
numberification can be easily companyceded to the companypetent
authority and so also the power to modify or vary it be
likewise companyceded but the said power must inevitably be
exercised within the limits prescribed by the provision
conferring the said power. number s. 20 empowers the
provincial government to declare the whole or any part of
the province to be a dangerously disturbed area and if a
numberification is issued in respect of the whole or any part
of the province it may be either cancelled wholly or may be
modified restricting the declaration to -a specified part of
the province. the power to cancel or modify must be
exercised in reference to the areas of the province which it
is companypetent for the provincial
government to specify as dangerously disturbed. the power
to modify cannumber obviously include the power to treat the
same area as dangerously disturbed for persons accused of
crimes companymitted in the past and number disturbed for others
accused of the same or similar a offences companymitted later. that clearly is a legislative function which is wholly
outside the authority companyferred on the delegate by s. 20 or
s. 36 1 . we must therefore hold that the third and the
fourth numberifications are invalid and as a result of the
second numberification the whole of the province of delhi
ceased to be a dangerously disturbed area from october 1
1950.
this position immediately raises the question about the
validity of the proceedings companytinued against the appellant
in the three cases pending against him under the summons
procedure. so long as the state of delhi was validly
numberified to be a dangerously disturbed area the adoption of
the summons procedure was numberdoubt justified and its
validity companyld number be impeached but with the cancellation
of the relevant numberification s. 36 1  of the act ceased to
apply and it was necessary that as from the stage at which
the cases against the appellant then stood the warrant
procedure should have been adopted and since it has number
been adopted the trial of the three cases is invalid and so
the orders of companyviction and sentence imposed against him
are void. that in brief is the alternative companytention
raised before us by mr. ram lal anand. mr. umrigar urges that since the trial had validly
commenced under the summons procedure it was unnecessary to
change the procedure after october 1 1950 and his case is
that the trial is number defective in any manner and the
challenge to the validity of the impugned orders of
conviction and sentence should number be upheld. in support of
his argument mr.umrigar has invited our attention to some
decisions which may number be companysidered. in srinivasachari v.
the queen  1  the accused was tried by a companyrt of sessions
in december 1882 on charges some of which were triable by
assessors and others by jury. before the trial was
concluded the companye of criminal procedure 1882 came into
force
 1  1883 i.l.r. 6 mad. 336.
and under s. 269 of the companye all the said charges became
triable by jury. section 558 of the companye had provided that
the provisions of the new companye had to be applied as far as
may be to all cases pending in any criminal companyrt on
january 1 1883. the case against the accused which was
pending on the date when the new act came into force was
submitted to the high companyrt for orders and the high companyrt
directed that by virtue of s. 6 of the general clauses act
the trial must be companyducted under the rules of procedure in
force at the companymencement of the trial. it is clear that
the decision of the high companyrt was based both on the
specific provisions of s. 558 which provided for the
application of the new companye to pending cases only as far as
may be and on the principles laid down in s. 6 of the
general clauses act. that is why that decision cannumber
assist the respondent since s. 6 of the general clauses act
is inapplicable in the present case. the decision on mukund v. ladu  1  is also inapplicable for
the same reasons. it was a case where one act was repealed
by anumberher and so the question as to the applicability of
the provisions of the latter act had to be companysidered in the
light of the provisions of s. 6 of the general clauses act. the judgment in terms does number refer to s. 6 but the
decision is obviously based on the principles of the said
section. then mr.umrigar relied on gardner v. lucas  2 . in that
case s. 39 of the companyveyancing  scotland  act 1874 with
which the companyrt was dealing affected number only the procedure
but also substantive rights and so it was held that the
said section was number retrospective in operation. this
decision is wholly inapplicable and cannumber give us any
assistance in the present case. mr. umrigar also placed strong reliance on a decision of the
full bench of the punjab high companyrt in ram singh v. the
crown  3 . that decision does lend support to mr. umrigars
contention that the companytinuation of the trial under the
summons procedure did number introduce any infirmity and was in
fact appropriate
 1  1901 3 bom. l.r. 584.  2  1878 3 a.c. 582.

a.i.r. 1950 east punjab 25.
and regular. the case against ram singh had been sent to
the companyrt of session under the provisions of s. 37  1  of
the punjab public safety act 1948  punj. 2 of 1948  at a
time when luahiana district was declared to be a dangerously
disturbed area before however the trial in the companyrt of
session actually companymenced the district ceased to be a
dangerously disturbed area. even so it was held that the
sessions judge should companytinue with the trial under the
provisions of s. 37  1  of the act and number under the
ordinary provisions of the companye regarding sessions trial
and should follow the procedure prescribed for the trial of
summons cases. it appears that the judgment in the case
proceeded on the assumption that the principles enacted by
s. 6 of the general clauses act were applicable and so
since at the companymencement of the proceedings the adoption of
the summons procedure was justified under s. 37  1  of the
act the trial companyld companytinue under the same procedure even
after the area had ceased to be a dangerously disturbed
area. in our opinion it is erroneous to apply by analogy
the provisions of s. 6 of the general clauses act to cases
governed by the provisions of a temporary act when the said
act does number companytain the appropriate saving section. failure to recognise the difference between cases to which
s. 6 of the general clauses act applies and those which are
governed by the provisions of a temporary act which does number
contain the appropriate saving section has introduced an
infirmity in the reasoning adopted in the judgment. besides the learned judges with respect were in error in
holding that the application of the ordinary criminal
procedure was inadmissible or impossible after the area
ceased to be dangerously disturbed. numberdoubt the learned
judges recognised the fact that ordinarily the procedural
law is retrospective in operation but they thought that
there were some good reasons against applying the ordinary
procedural law to the case and that is what influenced them
in companying to the companyclusion that the summons procedure had
to be companytinued even after the area ceased to be dangerously
disturbed. in this companynection the learned
judges referred to the observation in maxwell that the
general principle however seems to be that alterations in
procedure are retrospective unless there be some good
reason against it  1  and they also relied on the decision
of the privy companyncil in delhi cloth and general mills company
ltd. v. income-tax companymissioner delhi  2  in which their
lordships have referred with approval to their earlier
statement of the law in the companyonial sugar refining company v.
irving  3  that while provisions of a statute dealing
merely with matters of procedure may properly unless that
construction be textually inadmissible have retrospective
effect attributed to them. the learned judges took the
view that these principles justified their companyclusion that
where the provisions of a statute dealing with matters of
procedure are inapplicable to a certain proceeding pending
at the time the statute came into force they must be
regarded as textually inadmissible so far as those
proceedings are companycerned . we are disposed to think that
this view is number sound. we do number think that the adoption
of the ordinary warrant procedure was either inadmissible or
inapplicable at the stage where the trial stood in the case
against ram singh  4 . it was wrong to assume that the ses-
sions procedure would be inapplicable for the reason that
the provisions of the companye in regard to the companymitment of
the case to the companyrt of session had number been companyplied with. with respect the learned judges failed to companysider the fact
that the procedure adopted in sending the case to the companyrt
of session under s. 37 1  of the relevant act was valid and
the only question which they had to decide was what
procedure should be adopted after ludhiana ceased to be a
dangerously disturbed area. besides it was really number a
case of retrospective operation of the procedural law it
was in fact a case where the ordinary procedure which had
become inapplicable by the provisions of the temporary
statute became applicable as soon as the area in question
ceased to be dangerously disturbed. maxwell on interpretation of statutes  9th ed.p. 226.  2  1927 9 lah. 284.  3  1905 a.c. 369.

a.i.r.  1950  east punjab 25.
in this companynection it is relevant to refer to the decision
of this companyrt in syed qasim razvi v. the state of hyderabad
 1 . in that case this companyrt was dealing with the
regulation called the special tribunal regulation  v of 1358
fasli  which had been promulgated by the military governumber
of the hyderabad state. the said regulation had provided
that the  military governumber may by general or special
order direct that any offence or class of offences should
be tried by such tribunal and the procedure for trial laid
down by it differed from the provisions of the hyderabad
criminal procedure companye in several material particulars. the cases against the accused were directed to be tried by
the special tribunal on october 6 1949. the accused were
convicted in september 1950 and their companyviction on some of
the charges was upheld by the high companyrt in appeal in april
1951. the accused then appealed to this companyrt and also
applied under art. 32 of the companystitution for quashing the
orders of companyviction and sentence on the ground that the
special tribunal regulation became void on january 26 1950
as its provisions companytravened arts. 14 and 21 of the
constitution which came into force on that date and the
continuation of the trial and companyviction of the accused
after that date was illegal. it is true that the final
decision in the case according to the majority view
proceeded on the footing that the accused had substantially
the benefit of a numbermal trial though there were deviations
in certain particulars and so his companyviction companyld number be
set aside merely because the companystitution of india came into
force before the termination of the trial. as we will
presently point out the relevant facts in this case in
regard to the deviation from the numbermal procedure are
different from those in syed qasim razvis case  1  but
that is anumberher matter. what is important for our purpose
is the view expressed by this companyrt that the regulation
issued by the military governumber of hyderabad state companyld number
be impeached and so the special tribunal must be deemed to
have taken companynisance of
 1  1953 s.c.r. 589.
the case quite properly and its proceedings up to the date
of the companying in of the companystitution would also have to be
regarded as valid. dealing with this point mukherjea j.
who delivered the judgment of the companyrt quoted with
approval the observations made in lachmandas kewalram ahuja

the state of bombay 1  that as the act was valid in its
entirety before the date of the companystitution that part of
the proceedings before the special judge which up to that
date had been regulated by the special procedure cannumber be
questioned . unfortunately this aspect of the matter was
number properly placed before the full bench of the punjab high
court in the case of ram singh  2 . if the learned judges
had proceeded to deal with the question referred to them on
the basis that the initial submission of the case to the
court of session under s. 37 1  of the act was valid they
would number have companye to the companyclusion that the sessions
procedure was inadmissible or inapplicable to the
continuation of the case after ludhiana had ceased to be a
dangerously disturbed area. that is why we think that the
view taken by the full bench is erroneous. the position then is that as from october 1 1950 the three
cases against the appellant should have been tried according
to the warrant procedure. it is clear that at the stage
where the trial stood on the material date the whole of the
prosecution evidence had number been led and so there was no
difficulty in framing charges against the appellant in the
respective cases and thereafter companytinuing the trial accord-
ing to the warrant procedure. having regard to the nature
of the charges framed and the character and volume of
evidence led it is difficult to resist the appellants
argument that the failure to frame charges has- led to
prejudice and it is number at all easy to accept the
respondents companytention that the double opportunity to
cross-examine the prosecution witnesses which is available
to an accused person under the warrant procedure is number a
matter of substantive and valuable benefit to him. the
denial of this opportunity must
 1  1952 s.c.r. 710 731

a.i.r. 1950 east punjab 25.
in the circumstances of the present cases be held to have
caused prejudice to him. we must accordingly hold that the
continuation of the trial of the three cases against the
appellant according to the summons procedure subsequent to
october 1 1950 has vitiated the trial and has rendered the
final orders of companyviction and sentence invalid. we must
accordingly set aside the orders of companyviction and sentence
passed against the appellant in all the three cases.