PETITIONER: <NAME> Vs. RESPONDENT: <NAME> AND OTHERS. DATE OF JUDGMENT: 19/05/1954 BENCH: <NAME>, B.K. BENCH: <NAME>, B.K. AIYYAR, T.L. VENKATARAMA MAHAJAN, MEHAR CHAND (CJ) <NAME>, VIVIAN BHAGWATI, P.N. CITATION: 1954 AIR 520 1955 SCR 287 CITATOR INFO : R 1955 SC 233 (8) F 1955 SC 425 (12) R 1959 SC 422 (11,16) E&D 1960 SC 368 (4,8,9,17) E&D 1960 SC1049 (17) RF 1963 SC 677 (18) R 1963 SC 874 (9) R 1965 SC1595 (9,19,40) D 1971 SC1348 (8,10) R 1973 SC2362 (4,6) R 1975 SC1843 (35) RF 1975 SC2299 (273) R 1976 SC1207 (565) RF 1977 SC2155 (23) E&R 1978 SC 851 (24,30,83,124) R 1979 SC1284 (5) E 1980 SC 856 (21) E 1981 SC 547 (17,20,25) R 1986 SC 103 (5) D 1987 SC1629 (13) RF 1991 SC2176 (16) R 1992 SC 248 (34) RF 1992 SC2219 (53,135) ACT: Constitution of India, articles 136, 173, 329-Supreme <ORG> -Power to grant special leave to appeal-Decisioin of Election <ORG>-Represeiztation of the People Act (XLIII of; 1951), ss. 36, 100(1) (c) and (2) (c), 105-Non- compliance with the provisions of article 173- Constitutional disability-Election void - Whether under s. 100(1) (c) or s. 100 (2) (c) of the Act-Non-compliance with the provisions of Constitution in s. 100(2) (c)-scope of. HEADNOTE: Article 136 of the Constitution is worded in the widest terms possible. It vests in <ORG> a plenary jurisdiction in the matter of entertaining and hearing appeals by granting special leave against any kind of judgment or order made by a <ORG> or' <ORG> in any cause or matter and the powers can be exercised in spite of the specific provisions for appeal contained in the Consti- tution'or other laws. The powers given by the article are, however, in the nature of special or residuary powers which are exercisable outside the purview of ordinary law, in cases where the needs of justice demand interference by <ORG>. The non obstante clause in article 329 of the Constitution which debars <ORG> as well as any other <ORG> in India from entertaining a suit or a proceeding calling in question any election to <ORG> or <ORG> and section 105 of the Representation of the People Act which gives finality to the decision of the Election <ORG> so far as that Act is 268 concerned and does not provide for any further appeal, do not cut down or affect the overriding powers which the Supreme,<ORG> can exercise in the matter of granting special leave under article 136 of the Constitution. The overriding power vested in <ORG> under article 136 of the Constitution is wider than the prerogative right of entertaining an appeal exercised by <ORG> in England because the prerogative right of the Grown can be taken away or curtailed by express legislation but the Constitutional provision in article 136 cannot be limited or taken away by any <ORG>ary legislation and this Constitutional provision overrides ordinary laws and no presumption can arise from words and expressions declaring an adjudication of a particular <ORG> to be final and conclusive that there was an intention to exclude the exercise of the special power. Where on the finding of the <ORG> there has been a viola- tion of or non-compliance with the provision of article 173 of the Constitution because the candidate suffers from a Constitutional disability by reason of his under-age the case falls under sub-section (2) (c) of section 100 of the Representation of the People Act and not under sub-section (1) (c) of section 100 of the Act and election should be held to be void on the ground of the Constitutional disqualification of the candidate and not on the ground that his nomination was improperly accepted by the Returning Officer and therefore the 'election of that candidate only should be declared void and not the whole election. The expression " non-compliance with the provisions of the Constitution " in clause (c) of sub-section (2) of section 100 of the Act is sufficiently wide to cover such cases where the question is not one of improper acceptance or rejection of the nomination by the Returning Officer but there is a fundamental disability in the candidate to stand for election at all. <CITATION> . ( S.C.R. 459), <NAME> v. <NAME> ( [1876-771 2 A.C. 102), <NAME> v. <NAME> (9 C.P. 734) and <CITATION> (  S.C.R. 218) referred to. JUDGMENT:

CIVIL APPFLLATE, JURISDICTION: Civil Appeal No. 150 of 1953. Appeal by Special Leave from the Judgment and Order dated the 30th April, 1953, of <ORG>, Jabalpur, at Nagpur in Election Petition No. I of 1952.

<NAME>, <NAME> and <NAME> for the appellant. <NAME>, <NAME> and <NAME> for respondent No. 1.

1954. May 19. The Judgment of the Court was delivered by <NAME> appeal, which has come before us on special leave, is directed against the judgment and order of <ORG>, Jabalpur, at Nagpur dated the 30th April, 1953, whereby the <ORG> declared the election held on the 29th December, 1951, for the double member <ORG> Constituency, to be wholly void under section 100(1)(c) of the Representation of the People Act (hereinafter called "the Act").

To appreciate the contentions that have been raised by the parties to this appeal, it would be necessary to state briefly the material facts. The Lakhnadon Legistive Assembly Constituency in Madhya Pradesh is a double member constituency, one of the seats in which is reserved for Scheduled Tribes. The appellant and respondents Nos. 1, 3, 5 and 7 were duly nominated candidates for the general seat in the said constituency, while respondents Nos. 2, 4 and 6 were nominated for the reserved seat. No objection was taken before the Returning Officer in respect of the nomination of either the appellant or respondent No. 2, <NAME>. Out of these eight candidates, respondents Nos. 5, 6 and 7 withdrew their candidature within the prescribed period under section 37 of the Act and the actual contest at the election was between the remaining five candidates, namely, the appellant and respondents Nos. I to 4. The votes secured by these five candidates at the polling were found to be as follows :-

(1) The Appellant (General)...18,627 (2) Respondent No. I (General)7,811 (3) Respondent No. 2 (Reserved)14,442 (4) Respondent No. 3 (Reserved)7,877 (5) Respondent No. 4 (General)6,604 Accordingly the appellant and respondentNo. - 2 were declared elected to the general and reserved seat respectively, under section 66 of the Act, and the results were duly published in <ORG> on 8th of February, 1952. On the 14th of May, 1952, the respondent No. 1, <NAME>, filed an election petition against the appellant and the other respondents, under section 81 of the Act, praying that the said election to the Lakhnadon Legislative Assembly Constituency be declared wholly void or in the alternative the election of <NAME> and/or that of the appellant, <NAME>, be declared void. There was a string of allegations made in the petition accusing the appellant of various corrupt practices in the matter of securing votes but none of these are material for our present purpose, as the <ORG>, by a majority, held these allegations to be unfounded and not supported by proper evidence. The substantial ground upon which the petitioner sought to assail the validity of the election was, that the respondent No. 2, <NAME>, who was declared duly elected to the reserved seat in the said constituency was, at all material times, under 25 years of age and was consequently not qualified to be chosen to fill a seat in <ORG> under article 173 of the Constitution. This allegation was found to be true by the majority of the <ORG> and by its judgment dated the 30th of April, 1953, the <ORG> came to the conclusion that the act of the Returning Officer in accepting the nomination of <NAME>, who was disqualified to be elected a member of <ORG> under the Constitution, amounted to an improper acceptance of nomination within the meaning of section 100(1)(c) of the Act and as the result of the election was materially affected thereby, the whole election must be pronounced to be void. It is the propriety of this decision that has been challenged before us in this appeal.

Mr. <NAME>, appearing for the respondent No. I before us, took a preliminary point challenging the competency of the appeal. It is contended by the learned counsel, that article 329(b) of the Constitution ousts the jurisdiction of all ordinary <ORG> in election disputes and provides expressly that no election to either <ORG> or to either <ORG> of a State shall be called in question, except by and an election petition presented to such authority a in such manner as may be provided for by or under any law made by the appropriate <ORG>. It is urged that there can be no challenge to the validity of an election except by way of an election petition, and the authority to which, and the manner in which, such petition is to be presented, have been embodied in the Representation of the People Act which has been enacted by the <ORG> under article 327 of the Constitution. Section 80 of the Act, which is worded almost in the same manner as article 329(b ), provides that "no election shall be called in question except by an election petition presented in accordance with the provisions of this Part"; and section 105 says that "every order of the <ORG> made under this Act shall be final and conclusive." It is contended by the learned counsel that the jurisdiction that is created in the Election <ORG> is a special jurisdiction which can be invoked by an aggrieved party only by means of an election petition and the decision of the <ORG> is final and conclusive.

These arguments, though apparently attractive, appear to us on closer examination to be untenable. We agree with the learned counsel that the right of seeking election and sitting in <ORG> or in <ORG> is a creature of the Constitution and when the Constitution provides a special remedy for enforcing that right, no other remedy by ordinary action in a <ORG> of law is available to a person in regard to election disputes. The jurisdiction with which <ORG> is endowed is undoubtedly a special jurisdiction ; but once it is held that it is a judicial <ORG> empowered and obliged to deal judicially with disputes arising out of or in connection with election, the overriding power of this <ORG> to grant special leave, in proper cases, would certainly be attracted and this power cannot be excluded by any <ORG>ary legislation. The non obstante clause with which article 329 of the Constitution begins and upon which the respondent's counsel lays so much stress debars us, as it debars any other <ORG> in the land, to entertain a suit or a' proceeding calling in question any election to the <ORG> or <ORG>. It is <ORG> alone that can decide such disputes, and the proceeding has to be initiated by an election petition and in such manner as may be provided by a statute. But once that <ORG> has made any determination or adjudication on the matter, the powers of this <ORG> to interfere by way of special leave can always be exercised. It is now well settled by the majority decision of this <ORG> in the case of <CITATION> . (1) that the expression "<ORG>" as used in article 136 does not mean the same thing as "<ORG>" but includes, within its ambit, all adjudicating bodies, provided they are constituted by the <ORG> and are invested with judicial as distinguished from purely administrative or executive functions. The only <ORG>s or <ORG>s, which are expressly exempted from the purview of article 136 , are those which are established by or under any law relating to <ORG> as laid down in clause (2) of the article. It is well known that an appeal is a creature of statute and there can be no inherent right of appeal from any judgment or determination unless an appeal is expressly provided for by the law itself. The powers given by article 136 of the Constitution however are in the nature of special or residuary powers which are exercisable outside the purview of ordinary law, in cases where the needs of justice demand interference by the Supreme <ORG> of the land. The article itself is worded in the widest terms possible. It vests in the Supreme <ORG> a plenary jurisdiction in the matter of entertaining and hearing appeals, by granting of special leave, against any kind of judgment or order made by a <ORG> or <ORG> in any cause or matter and the powers could be exercised in spite of the specific provisions for appeal contained in the Constitution or other laws. The Constitution for the best of reasons did not choose to fetter or circumscribe the powers exercisable under this article in any way. Section 105 of the Representation of the People Act certainly gives finality to the decision of <ORG> so far as that Act is concerned and does not provide for any further appeal but that cannot in any way cut down or affect the overriding powers which this <ORG> can exercise in the matter of granting special leave under article of the Constitution.

(i) [195o] S.C.R. 459, This overriding power, which has been vested in <ORG> under article 136 of the Constitution, is in a sense wider than the prerogative right of entertaining an appeal exercised by <ORG> of <ORG> in England. The prerogative of the <ORG> can be taken away or curtailed by express legislation and even when there are no clear words in a particular statute expressly taking away the <ORG>'s prerogative of entertaining an appeal but the scheme and purpose of the Act show unmistakably that there was never any' intention of creating a <ORG> with the ordinary incident of an appeal to the <ORG> annexed to it, <ORG> would not admit an appeal from the decision of such <ORG>. This is illustrated by the decision of <ORG> in The berge v. <NAME>) upon which Mr. <NAME> places considerable reliance. In that case the petitioner having been declared duly elected a member to represent the electoral district of Montmanier, in <ORG> the Province of Quebec, his election was afterwards, on petition, declared null and void, by judgment of the superior Court under the Quebec Controverted Elections Act, 1875, and he himself was declared guilty of corrupt practices. He applied for special leave to appeal to His Majesty in Council. The application was refused and Lord <NAME> in delivering the judgment of the <ORG> held, that although the prerogative of the <ORG> could not be take in away or limited except by express words and the relevant section of the Quebec Controverted Elections Act of 1875 providing that "such judgment shall not be susceptible of appeal" did not mention either the <ORG> or its prerogative, yet the fair construction of the above Act as also of the previous Act of/1872 was that it was the intention of the <ORG> to create a <ORG> for the purpose of trying election petitions in a manner which would make its decision final for all purposes and should not annex to it the incident of its judgment being reviewed by the <ORG> under its prerogative.

This decision in our opinion does not assist Mr. <NAME>. In the first place article 136 is a (I) (1876-77) 2 App.Cas. 102.

constitutional provision which no <ORG>ary legislation can limit or take away. In the second place the provision being one, which overrides ordinary laws, no presumption can arise from words and expressions declaring an adjudication of a particular <ORG> to be final and conclusive, that there was an intention to exclude the exercise of the special powers. As has been said already, the non obstante clause in article 329 prohibits challenge to an election either to <ORG> or <ORG>, except in the manner laid down in clause (2) of the article. But there is no pro hibition of the exercise of its powers by <ORG> in proper cases under article 136 of the Constitution against the decision or determination of an Election <ORG> which like all other judicial, tribunals comes within the purview of the article. It is certainly desirable that the decisions on matters of disputed election should, as soon as possible, become final and conclusive so that the constitution of the <ORG> may be distinctly and speedily known. But the powers under article 136 are exercisable only under exceptional circumstances. The article does not create any general right of appeal from decisions of all <ORG>s. As regards the decision of this <ORG> in <CITATION> (1), to which reference has been made by the learned counsel, we would only desire to point out that all that this case decided was that the High <ORG> bad no jurisdiction, under article 226 of the Constitution, to interfere by a writ of certiorari, with the order of a Returning Officer who was alleged to have wrongly rejected the nomination paper of a particular candidate. It was held that the word "election" in article 329(b) of the Constitution had been used in the wide sense to connote the entire process, culminating in a candidate's being declared elected and that the scheme of Part XV of the Constitution was -that all matters which had the effect of vitiating election should be brought up only after the election was over and by. way of an election petition. The particular point, which arises for considers. tion here, was not decided in that case and was expressly (I)  S.C.R. 218.

left open. In our opinion therefore the preliminary point raised by Mr. <NAME> cannot succeed.

Coming now to the appellant's case, Mr. <NAME> who appeared in support of the appeal, has pressed only one point for our consideration. He plainly stated that he could not challenge the propriety of the finding, arrived at by the majority of the <ORG> that respondent, <NAME>, was below 25 years of age at all material times. This, he concedes, is a finding of fact and being based on evidence, is not open to challenge before us in an appeal by special leave. His contention in substance is, that there has been no improper acceptance of nomination in the present case, as has been held by the <ORG> and consequently the provision of section 100(1)(c) of the Act would not be attracted to it and the entire election could not have been declared void. It is, true, says the learned counsel, that on the finding of the <ORG> there has been a violation of or non- compliance with the provision of article 173 of the Constitution and as respondent No. 2 suffers from a constitutional disability by reason of his under-age and is not qualified to be chosen to fill a seat in <ORG> of a State, his election can undoubtedly be declared void under section 100(2)(c) of the Act, but there was no justification for pronouncing the whole election, including that of the appellant, to be void. The whole controversy thus centres round the point as to whether, upon the facts admitted and proved, the present case comes within the -purview of sub-section (1)(c) of section 100 of the Act or of sub-section (2)(c) of the same section. The relevant portions of section 100 of the Act so far as are material for our present purpose may be set out as follows:- "100. Grounds for declaring election to be void- (1) If the <ORG> is of opinion---

(a) ......................................................

(b) ............................................

(c) that the result of the election has been materially affected by the improper acceptance or rejection of any nomination, the <ORG> shall declare the election to be wholly void.

(2) Subject to the provisions of subsection (3), if the Tribunal is of opinion-

(a)..............................

(b)..............................

(c) that the result of the election has been materially affected by the improper reception or refusal of a vote or by the reception of any vote which is void, or by any non- compliance with the provisions of the Constitution or of this Act or of any or orders made under this Act or of any other Act or rules relating to the election, or by any mistake in the use of any prescribed form, the <ORG> shall declare the election of the returned candidate to be void."

The first point for our consideration is whether the nomination of <NAME> was improperly accepted by the Returning Officer and that has materially affected the result of the election. It is not suggested on behalf of the respondent that the nomination paper filed by <NAME> was in any manner defective. It is admitted that the names and electoral numbers of the candidate and his proposer and seconder as entered there were the- same as those entered in the electoral rolls. It is also not disputed that the nomination paper was received within proper time as is laid down in section 33 , sub-section (4) of the Act. Section 36 of the Act provides for scrutiny of nominations and under subsection (2) the Returning Officer has got to examine the nomination papers and decide all objections that may be made to any nomination and he may either on such objection or oh his own, motion, after such summary enquiry, if any, as he thinks necessary, refuse any nomination on any of the grounds which are specified in the different clauses of the sub-section. The ground mentioned in clause (a) of the sub- section is, that the candidate is not qualified to be chosen to fill the seat under the Constitution or the Act. The contention of the respondent No. 1 is that the nomination of <NAME> should have been rejected on this ground and as the Returning Officer did not do that, his act amounted to an improper acceptance of nomination within the meaning of section 100(1)(c) of the Act. We do not think that this contention is sound. If the want of qualification.of a candidate does not appear on the face of the nomination paper or of the electoral roll, but is a matter which could be established only by evidence, an enquiry at the stage of scrutiny of the nomination papers is required under the Act only if there is any objection to the nomination. The Returning Officer is then bound to make such enquiry as he thinks proper on the 'result of which he can either accept or reject the nomination. But when the candidate appears to be properly qualified on the face of the electoral roll and the nomination paper and no objection is raised to the nomination, the Returning Officer has no other alternative but to accept the nomination. This would be apparent from section 36 , subsection (7) of the Act which runs as follows:

"(7) For the purposes of this section-

(a) the production of any certified copy of an entry made in the electoral roll of any constituency shall be conclusive evidence of the right of any elector named in that entry to stand for election or to subscribe a nomination paper, as the case may be. unless it is proved that the candidate is disqualified, under the Constitution or this Act, or that the proposer or seconder, as the case may be, is disqualified under sub-section (2) of section

In other words, the electoral roll is conclusive as to the qualification of the elector except where a disqualification is expressly alleged or proved. The electoral roll in the case of <NAME> did describe him as having been of proper age and on the face of it therefore he was fully qualified to be chosen a member of <ORG>. As no objection was taken to his nomination before the Returning Officer at the. time of scrutiny, the latter was bound to take the entry in the electoral roll as conclusive ; and if in these circumstances he did not reject the nomination of <NAME>, it cannot be said that this was an improper acceptance -of nomination on his part which  section 100(1)(c) of the Act contemplates. It would have been an improper acceptance, if the want of qualification was apparent on the electoral roll itself or on the face of the nomination paper and the Returning Officer overlooked that defect or if any objection was raised and enquiry made as to the absence of qualification in the candidate and the Returning Officer came to a wrong conclusion on the materials placed before him. When neither of these things happened, the acceptance of the nomination by the Returning Officer must be deemed to be a proper acceptance. It is certainly not final and <ORG> may, on evidence placed before it, come to a finding that,* the candidate was not qualified at all. But the election should be held to be void on the ground of the constitutional disqualification of the candidate and not on the ground that his nomination was improperly accepted by the Returning Officer. In our opinion Mr. <NAME> is right that a case of this description comes under sub-section (2)(c) of section 100 and not under sub-section (1)(c) of the section as it really amounts to holding an election without complying with the provisions of the Constitution, and that is one of the grounds specified in clause (c) of subsection (2). The expression " non-cgmpliance with the provisions of the Constitution " is in our opinion sufficiently wide to cover such cases where the question is not one of improper acceptance or rejection of the nomination by the Returning Officer, but there is a fundamental disability in the candidate to stand for election at all. The English law, after the passing of the Ballot Act of 1872, is substantially the same as has been explained in the case of <NAME> v. <NAME>). The register which corresponds to our electoral roll is -regarded as conclusive except in cases where persons are prohibited from voting by any statute or by the common law of <ORG>.

It is argued on behalf of the respondent that the expression" non-compliance as used in subsection (2)(c) would suggest the idea of not acting according to any rule or command and that the expression is not quite appropriate in describing a mere lack of (1) 9 C.P. 734.

qualification. This, we think, would be a narrow way of looking at the thing. When a person is incapable of being chosen as a member of <ORG> under the provisions of the Constitution itself but has never. theless been returned as such at an election, it can be said without impropriety that there has been noncompliance with the provisions of the Constitution materially affecting the result of the election. There is no material difference between " non-compliance " and " non-observance " or " breach" and this item in clause (c) of sub-section (2) may be taken as a residuary provision contemplating cases where there has been infraction of the provisions of the Constitution or of the Act but which have not been specifically enumerated in the other portions of the clause. When a person is not qualified to be elected a member, there can be no doubt that <ORG> has got to declare his election to be void. Under section 98 of the Act this is one of the orders which <ORG> is competent to make. If it is said that section 100 of the Act enumerates exhaustively the grounds on which an election could be held void either as a whole or with regard to the returned candidate, we think that it would be a correct view to take that in the case of a candidate who is constitutionally incapable of being returned as a member there is non-compliance with the provisions of the Constitution in the holding of the election and as such sub- section (2)(c) of section 100 of the Act applies. The result therefore is that in our opinion the contention of the appellant succeeds. We allow the appeal in part and modify the order of <ORG> to this extent that the election of respondent No. 2 <NAME> only is declared to be void; the election of the appellant however will stand. We make no order as to costs of this appeal. Order accordingly.


PETITIONER: UNION OF INDIA AND ORS. Vs. RESPONDENT: <NAME> DATE OF JUDGMENT07/04/1977 BENCH: GUPTA, A.C. BENCH: GUPTA, A.C. BEG, M. HAMEEDULLAH (CJ) KAILASAM, P.S. CITATION: 1977 AIR 1548 1977 SCR (3) 472 1977 SCC (2) 870 CITATOR INFO : RF 1986 SC 626 (7,16) ACT: Central <ORG>s and Salt Act , 1944---Schedule I Entry 21--Non-woven felts manufactured out of woollen fibres by machine pressing, whether "wollen fabrics" for the purpose of levy of excise duty--Rule of interpretation of items in a statute. HEADNOTE: An excise duty of Rs. 55055.87 was levied and collected from the respondent-firm by the <ORG> authorities treating the non-woven felts manufactured by them as "woollen fab- rics" covered by entry 21 in Schedule I to the Central <ORG>s and Salt Act , 1944. <ORG> allowed the writ petition filed by the respondent and held that the respondent's products were not "woollen fabrics" and direct- ed the refund of the entire sum collected as excise duty. Dismissing the appeal by certificate to this Court, HELD: (1) The well-known rule in interpreting items in statutes is that resort should be had not to the scientif- ic or the technical meaning of such terms but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, their commercial sense. [474 <CITATION> , AIR 1967 SC 1454, applied. (2) Fabric means woven material. Entries 19 to 22 in the Schedule deal with fabrics. Entry 21 describes woollen fabrics as meaning all varieties of fabrics manufactured out of wool, barring the exceptions mentioned, including blan- kets, lohis, rugs, shawls and embroidery in the piece in strips or in motifs. The word "fabric" in entry 21 has been used to mean woven material in which sense it is popularly understood. The term "woollen fabrics" in that sense was not wide enough to cover non-woven material which is wool- based. Blankets. rugs and shawls etc. have been specifical- ly included in the entry out of abundant caution to indicate that "woollen fabrics" in entry 21 means not only woollen garments but also woollen material used as covering or for similar other purposes. [473 H, 474 F-G] (3) It is plain from entry 21 in Schedule 1 to the Central <ORG>s and Salt Act , 1944 that the respondent's products did not fall within it as they are nonwoven felts from woollen fibres. [474 C]- JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1037 of 1971.

(From the Judgment and Order dated the 17th June, 1971 of <ORG> in Special Civil Application No. 112/67).

<NAME>, <ORG>. and <NAME>, for the appellants.

<NAME> and <NAME>, for the respondent. The Judgment of the Court was delivered by <ORG> J.--The respondent is a partnership firm manufac- turing non-woven felts from woollen fibres which are uti- lised for the purpose of filtration in heavy industries. Between August 25, 1965 and January 5. 1967 the Excise authorities compelled the respondent to pay Rs. 55,055/87 p. as excise duty on its products. The respondent filed a writ petition in <ORG> at Ahme- dabad for quashing the order levying excise duty on the felts manufactured by the respondent treating them as 'woo- llen fabrics' covered by entry 21 in Schedule I to the Central Excises and Salt Act , 1944 (hereinafter referred to as the Act). <ORG> allowed the writ petition holding that the respondents products were not 'woollen fabrics' and directed refund of the sum of Rs. 55,055/87 p. collected as excise duty from the firm. <ORG> has preferred this appeal on certificate of fitness granted by <ORG> questioning the correctness of the deci- sion.

The only question in the appeal is whether the felts manufactured by the respondent are "woolien fabrics" within the meaning of entry 21 in the first schedule to the Act.The writ petition describes the process of manufacture and states that the thickness of the felts produced varies from 1 mm. to 50 mms. according to. the specification of the customers and that these are really machine pressed raw woolwaste. It is stated further that the felts manufactured .by the process described are neither sheets nor fabrics, they are not material from which garments could be prepared nor they could be used 'as covering or for similar other purposes. Entry 21 in the first schedule to the Act reads:

"21. WOOLLEN FABRICS--

"Woollen fabrics" .means all varieties of fabrics manufactured wholly of wool or which contain 40 per cent, or more by weight of wool and includes blankets, lohis, rugs, shawls and embroidery in the piece, in strips or in motifs:

Provided that in the case of embroidery in the piece, in strips or in motifs, the percentage referred to above shall be in relation to the base fabrics which are embroi- dered--_ (1) Woollen fabrics, other than Ten percent.

embroidery in the piece, in ad valorem.

strips or in motifs. --------- (2) Embroidery in the piece in The duty for strips or in motifs, in or in the time being relation to the manufacture leviable on the of which any process is ord- base fabrics, inarily carried on with the if not already aid of power. paid, plus twenty percent. ad va'orern

Explanation-----" Base fabrics" means fab- rics falling' under sub-item (1) of this Item which are subjected to the process of embroi- dery."

Are the products of the respondent's factory woollen fabrics ? Fabric means woven material. The articles manu- factured by the respondent, as already stated, are non- woven felts from woollen fibres. It is contended on behalf of the appellant, <ORG>, that in a technical sense the felts manufactured by the respondent would still be woollen fabrics. The well-known rule in interpreting items in statutes like the one we are concerned with is that "resort should be had not to the scientific or the technical meaning of such terms but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, to their commercial sense". ( <CITATION> )(1). <ORG> has held that a trader dealing in woollen fabrics would not regard the respondent's products as woollen fabrics, but it does not appear that there is any evidence on the record of the case to support the finding. However, an inquiry re- garding the meaning of the term woollen fabrics as commer- cially understood would be relevant only when there is doubt as to the sense in which the term has been used in entry 21; it seems to us plain from the entry read as a whole that the respondent's products did not fail within it. Entries 19 to 22 in the schedule all deal with fabrics. Entry 19 deals with cotton fabrics which is stated to cover, barring the exceptions specified, all varieties of fabrics manufactured either wholly or partly from cotton and in- cludes, dhoties, sarees, chadders, bed-sheets, bed-spreads etc. Entry 20 relates to slik fabrics which is said to mean all varieties of fabrics manufactured. either wholly or partly from silk with certain exceptions and includes em- broidery in the piece, in strips or in motifs. Entry 22 relates to rayon or artificial silk fabrics which also is said to mean all varieties of fabrics manufactured either wholly or partly from rayon or artificial silk with some exceptions and includes embroidery in the piece, in strips or in motifs etc. In this group, entry 21 describes woollen fabrics as meaning all varieties of fabrics manufactured out of wool, barring the exceptions mentioned, including blankets, lohis, rugs, shawls and embroidery in the piece, in strips or in motifs. If the term 'woollen fabrics' in this entry had been used in its technical or scientific sense and, if in that sense, it was wide enough to cover non woven material which is wool-based, then it is diffi- cult to explain why the entry should specifically mention blankets, rugs and shawIs as being included within it. No one could possibly be in any doubt in respect of these few items if the term was so pervasive, and there was no reason for singling out these specific objects. On the contrary, the mention of these items suggests that the word 'fab- rics' in entry 21 has been used to mean woven material in which sense it is popularly understood, and blankets, rugs and shawls etc. have been specifically included in the entry out of abundant caution to indicate that 'woollen fabrics' in entry 21 means not only woollen garments but also woollen material used as 'covering or for similar other purposes. We therefore find no reason to take a view different from that taken by <ORG>.

The appeal is dismissed with costs.

S.R. Appeal dismissed. (1) A.I.R. 1967 S.C. 1454.


PETITIONER: STATE OF BIHAR Vs. RESPONDENT: RAMESH SINGH DATE OF JUDGMENT02/08/1977 BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. SHINGAL, P.N. CITATION: 1977 AIR 2018 1978 SCR (1) 257 1977 SCC (4) 39 CITATOR INFO : R 1979 SC 366 (8) F 1980 SC 52 (18) F 1980 SC1780 (4) RF 1986 SC2045 (45) RF 1990 SC 121 (9) RF 1990 SC1962 (6) ACT: Criminal Procedure Code 1973- Sections 226 , 227 and 228 . Tests for discharging an accused-Presumption of innocence- Difference between case for conviction or case for proceeding further. HEADNOTE: At 3.00 A.M. on the 26th of November 1973 Smt. <NAME>, wife of respondent, a professor of Economics, in <ORG>, Motihari in <ORG> of Bihar, was found burning in the, Kitchen of their house. She died as a result of excessive burn injuries on her person. The brother of <NAME> rushed to the spot and found that respondent and his brother were standing near the burning body of <NAME> but were not taking any steps to extinguish the fire. He lodged the F.I.R. at Police Station charging the respondent for having committed the offences under s. 302 and 201 of Penal Code. Charge sheet was submitted against him by the police and the case was committed to <ORG> for trial of the respondent u/s. 209 of Cr. P.C. 1973. The Sessions Judge discharged the accused under s. 227 of Cr. P. Code 1973 on the ground that there was not sufficient ground for proceeding with the trial against respondent and he was discharged in accordance with section 227 . The <ORG> of Bihar went in revision before Patna High <ORG>, which was dismissed by <ORG>. Allowing the appeal by special leave, HELD : (1) Under s. 226 of the Code the prosecutor while opening the case has got to describe the charge against the accused and <ORG> by what evidence he proposes to prove the guilt of the accused. Thereafter, comes it the initial stage, the duty of the <ORG> to consider the record of the case and the documents submitted therewith. The Judge has then to pass an order either u/s. 227 or u/s. 228 of Code . [259C, D] If the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing as enjoined by s. 227. If on the other hand, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which (b)is exclusively triable by the court, he shall frame in writing a charge against the accused as provided in s. 228 . Reading the two provisions together in juxta a position at the initial stage of the trial, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. [259E-F] The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of accused, is not exactly to be applied at the stage of deciding the matter under s. 227 and 228 of the Code. [259G] Strong suspicion against the accused, if it remains in the region of suspicion, cannot' take the place of proof of his guilt at the conclusion of trial. But at the initial stage, if there is a strong suspicion which leads the court to think that there is a ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. It is only for the purpose of deciding 258 prima facie whether the court should proceed with the trial or no,,. The evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. [259H, 260A-B] If the scales of pan as to the, guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if on the other hand, it is so at the initial stage of making an order under s. 227 or s. 228 then in such a situation ordinarily and generally the order which will have to be made will be one under s. 228 and not under s. 227 . [260C-D] Nirmal Jeet Singh Hoon v. <ORG> of West Bengal (1973) 2 SCR 66 has followed <CITATION> (1964) 3 SCR 639 wherein it was laid down that the test is whether there is a sufficient ground for proceeding and not, whether there is a sufficient ground for conviction. After setting aside the orders of High <ORG> and <ORG>, the <ORG> directed that appropriate charge or charges be framed against the respondent and trial to proceed in accordance with law. [261H] The <ORG> observed that nothing stated in the judgment is meant to prejudice in the least the case of either party at the trial. [259C] JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 51 of 1977.

Appeal by Special Leave from the Judgment and Order dated 18-2-1976 of <ORG> in Crl. Rev. No. 699/75. <NAME> and <NAME>, for the, Appellant. <NAME> and <NAME>, for the Respondent. The following Judgment of the Court was delivered by UNTWALIA, J.-The respondent in this appeal by special leave is a Professor of Economics in <ORG>, Motihari in the State of Bihar. At about 3.00 A.M. on the 26th of November, 1973, Smt. <NAME>, wife of the respondent, was found burning in the kitchen of his house. A hulla was raised. <NAME>, brother of <NAME>, who is a Professor of Botany in the said College and lives nearby came to the scene of occurrence. It is said he found the respondent and his brother standing near the burning body of <NAME> but not taking any steps to extinguish the fire. <NAME> died apparently as a result of the extensive burn injuries on her person. A First Information Report was lodged by <NAME> at the Police Station charging the respondent for having committed the offences under sections 302 and 201 of the Penal Code. Eventually Charge-Sheet was submitted against him by the police and the case was committed to <ORG> for trail of the respondent under section 209 of the Code of Criminal Procedure, 1973-hereinafter called the Code .

When the case was opened in <ORG> IIIrd Additional Sessions Judge at Motihari in Sessions Trial No. 66/1975 by the Additional Public Prosecutor in accordance with section 226 of the Code, a plea was raised on behalf of the respondent that there was not any sufficient ground for proceeding with the trial against him and he should be discharged in accordance with section 227 . The Additional Sessions Judge accepted the plea and discharged the accused by his order dated April 30, 1975. The State of Bihar the appellant in this appeal went in revision before <ORG> to assail the order aforesaid of <ORG>. <ORG> by its order dated the 18th February, 1976 dismissed the revision. Hence this appeal. It is neither necessary nor advisable for us to mention in any great detail the facts of the prosecution case against the respondent or refer to all the materials and the evidence which may be produced by the prosecutor when a trial proceeds in <ORG>. Unnecessary details in that regard have got to be avoided so that it may not prejudice either the prosecution case of the appellant or the defence of the respondent. Since for the brief reasons to be stated hereinafter we are going to set aside the orders of the Courts below and direct the trial to proceed against the respondent, we would like to caution that nothing which may have to be said in support of our order in this judgment is meant and should be understood to prejudice in the least the case of either party at the trial. Under section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. 'The Judge has to pass thereafter an order either under section 227 or section 228 of the Code. If "the Judge consider that there is not. sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing", as enjoined by section 227 . If, on the other hand, "the Judge is of opinion that there, is ground for presuming. that the accused has committed an offence which-

(b)is exclusively triable by the <ORG>, he shall frame in writing a charge against the accused'-', as provided in section 228 . Reading the two provisions together in juxta position, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under section 227 or section 228 of the Code. At that stage the <ORG> is not to 'see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the <ORG> to think that there is ground for presuming that the accused has committed an offence then it is not open to the <ORG> to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the, initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the <ORG> should proceed with the trial or not. if the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the, trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But, if, on the other hand, it is so at the initial stage of making an order under section 227 or section 228 , then in such a situation ordinarily and generally the order which will have to be made will be one under section 228 and not under section 227 . <CITATION> and an- other(1)-Shelat, J. delivering the judgment on behalf of the majority for the <ORG> referred at page 79 of the report to the earlier decisions of this <ORG> in <CITATION> (2) where this <ORG> was held to have laid down with reference to the similar provisions contained in sections 202 and 203 of the Code of Criminal Procedure, 1898 "that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of a process could not be refused." Illustratively, <NAME>, further added "Unless, therefore, the Magistrate finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case."

The fact that <NAME> died an unnatural death and there were burn injuries on her person does not seem to be in doubt or dispute. The question to be decided at the trial would be whether the respondent, as is the prosecution case, had murdered her and set fire to her body or whether she committed suicide by herself setting fire to , it This undoubtedly is a serious matter for decision at the trial. But at the stage of framing the charge, copious reference to <NAME>'s Medical Jurisprudence and judging the postmortem report of the Doctor who performed the autopsy over the dead body of the lady meticulously was not quite justified as has been done by the Trial Judge (1) [1973] 2 S.C.R. 66.

2. [1964] 3 S.C.R. 629.

According to the persecution case the respondent was in love with one of his girl students, named, <NAME> and this led to the serious differences between the respondent and his wife, the unfortunate <NAME>, inducing the former to clear the path of his misadventure in the manner alleged by the prosecution. On the other hand, the defence seems to suggest that the 'alleged love-affair of the respondent led <NAME> to commit suicide. Whether the respondent will be able to prove his defence at the final stage of the trial may not be of much consequence. Surely the prosecution will have to prove its case beyond any reasonable doubt. Although at the time of the alleged occurrence were present in the house of the respondent his brother, his brother's wife, and children the prosecution does not seem to be in possession of any oscular testimony of an eye witness of the occurrence. The case will largely, rather, wholly, depend upon the circumstantial evidence. A stricter proof will have to be applied for judging the guilt of the accused with reference to the various circumstantial evidence against him. The at this stage the Additional Sessions Judge was not right when he said-"it appears that there is neither direct evidence nor any circumstantial evidence to connect the accused with the alleged murder of <NAME>".' He also ought not to have referred to the varying opinions of the Circle Inspector and the Superintendent of Police, <NAME> as to the submission of Charge-Sheet against the respondent. Apart from some other circumstances, as it appears, the prosecution proposes to prove in this case, and whether it will succeed in proving them or not is a different matter, <ORG> has enumerated three circumstances in its impugned order. We may just add, and that is only for the purpose of a cursory observation for deciding the matter at this stage, that the story of assault on <NAME> by the respondent a day prior to the occurrence is perhaps sought to be proved by the evidence of <NAME>, the informant, and it seems, he would also try to say, rightly or wrongly, that at the time of the said assault the respondent had given her a threat to kill her. <ORG> felt persuaded to take the view that the three circumstantial facts, even if proved, would not be incompatible with the innocence of the accused and then added "There may be strong suspicion against the opposite party, but the three circumstances which I have just mentioned above, cannot be said to be incompatible with the defence of the accused." The said observation of <ORG> is not quite apposite in the background of the law which we have enunciated above with reference to the provisions of sections 227 and 228 of the Code. For the reasons stated above, we set aside the impugned orders of <ORG> and <ORG> and direct that appropriate charge or charges will be framed against the respondent and the trial shall proceed further in accordance with the law.

P. H. P. Appeal allowed.