<NAME>, J.

1. We are dealing in this case with two appeals (Nos. 300 and 312 of 1938 respectively) under Section 417, Criminal P.C., and one application for revision (No. 296 of 1938), all presented by, or at the instance of, <ORG>. The Appeal No. 300 of 1938 is an appeal in which the fifty-seven respondents, all of whom were acquitted, were upon their trial before the learned Sessions Judge of Bulandshahr. The Appeal No. 312 of 1938, involves eight respondents three of whom were convicted upon charges in connexion with the incident at the temple which we shall mention later and five of whom were convicted upon charges in connexion with the incidents in the bazaar which we shall also deal with. The Revision Application No. 296 of 1938 involves as respondents the same eight men who are respondents in Appeal No. 312 of 1938 and asks for a revision of sentences passed upon them in respect of certain charges in respect of which they were convicted at the trial.

2. It will be convenient if we begin by setting out as shortly as we can a narrative of the events which led to the trial in question. The case, which was tried by the learned Sessions Judge in November 1937, has become known as the Amarpur dacoity case. Amarpur is a village or a small town in the Bulandshahr district and seems to be one of the twelve villages which go under the collective name of "Bara Basti." The twelve villages adjoin each other within an area of some seven square miles. They contain a cosmopolitan population of Pathans and other Mussalmans and Vaishes and other Hindus. The particular town of Amarpur possesses a population of a little over two thousand made up, as far as we can gather, of about eight hundred Pathans, eight hundred other Mussalmans, three hundred Vaishes and some three hundred other Hindus.

3. The learned Sessions Judge has been at considerable pains and we hesitate to say that we do not think him right in having done so, to investigate the exact relations between the Hindu and Mahomedan populations of the place, for, it is necessary at the outset to say that the conflict out of which these proceedings have arisen was one which, if not communal, in the strict sense, was, at any rate, one between Mahomedans on the one side and Hindus on the other side. With very few exceptions, all the hundred and twenty men who were tried by the learned Sessions Judge, the appeals of many of whom are now before us, were Mahomedans, while it will be seen from the evidence, when we come to deal with it, that all the victims of the disturbance which took place were Hindus. The learned Judge was therefore probably right to devote considerable attention to the relations which existed in the town between the two communities. He has found a number of circumstances which might be supposed to afford grounds for ill feeling between them. It appears that the commerce of the place was principally in the hands of the Vaishes who possessed between twenty-five and thirty shops, while only three or four belonged to the Mahomedans. In addition the Vaishes carried on a flourishing money lending business in the course of which many, if not most, of the Mahomedans and other non-Vaishes of the town had become obliged to them. The learned Judge has found that for the past few years there had been a change, inasmuch as some years ago it was the Pathans who were the prosperous community. But they had been gradually displaced and reduced to poverty and debt by the Vaishes, who succeeded in getting into their hands a considerable part of the property which formerly belonged to the Pathans. In this way it comes about that a great number of the accused are indebted to the complainants.

4. In addition to this, the learned Judge has observed certain other phenomena in the place, particularly one or more cases in which attempts had been made by Mahomedans to convert non-Mahomedans of the town to Islam and a dispute which had been going on since 1934 concerning an alleged encroachment by a mosque upon certain land belonging to some of the Hindus. This dispute culminated in an appeal which was to be heard on 19th November 1936, the day after the disturbance in question took place. We also have read, and carefully considered, the evidence relating to the relations between the two communities of the place. While we think that it does bear out the view formed by the learned Judge that there was ill-feeling between them, we ourselves hesitate to pursue it very far or to deal with it at length in this judgment because we take the view that, although in assessing the value of the evidence it is a matter always to be borne in mind, it cannot serve as a substitute for a critical examination of the evidence itself. We shall have occasion during the course of this judgment to say that in this and in other respects the learned Judge has adopted a number of altogether arbitrary tests in weighing the evidence and, in our view, this is one of the matters in which it is possible that he has allowed himself to be unduly influenced by the surrounding atmosphere. We think it probable that many irritating factors could be found to exist in almost every village which contains a mixed population of Hindus and Mahomedans and, while we agree that this must necessarily be a proper matter in every case to bear in mind, we think nevertheless that it cannot serve in any way as a substitute for a careful examination of the individual evidence of each witness. This was not a communal riot of the character with which this province is so unhappily familiar, for the rioters do not appear to have been actuated by religious frenzy against the opposite community. It cannot be said that the riot was not of a communal nature at all, but it was essentially a quarrel between the Mahomedans on the one side, assisted by a few low caste Hindus, and a section of the Hindu community, namely the Vaishes, on the other, the root cause being economic rather than religious. Although it is said that there was a mob of Mahomedans, armed with lathis and spears, only nine Hindu shop-keepers, all Banias except for two Sunars, were injured during the looting of the bazar, and none of the injuries were grievous. It would thus appear that the rioters were less inspired by fanatical fury against the Hindus as such than by a desire to loot and plunder the Banias.

5. The town of Amarpur possesses, as we have said, a mosque. It also possesses a Hindu temple situated about a furlong from the town. It is a small temple containing an image of <NAME>, without a roof but enclosed, as we understand, by a wall. The curtilage contains a garden, a chabutra and a little temple which houses the image itself. The evidence leaves much to be desired as to how exactly the temple was constructed-a matter not altogether with out importance when we come to consider the charges themselves later on. A Hindu named <NAME> was the pujari of the temple. The town has also a bazar lying to the north of the temple and connected with it by a long road bordered by houses. The business centre of the town-we shall call it in this case the bazar-was at a cross-roads on this road rather less than half a mile north of the temple at which point four roads met, the one from the south leading from the temple and continuing to the north intersected by a road running from east to west.

6. On 18th November 1936 at about 7 o'clock in the morning the pujari, <NAME>-so the story goes-was reciting 'arti' and ringing the small temple hand bell. This apparently is a common form of a Hindu ceremony consisting of a kind of chant by the pujari to the accompaniment of the bell. "With him were two other men <NAME> and <NAME> who were there apparently as worshippers repeating the 'arti.' That was the scene when the first of the incidents with which we are dealing occurred. To put the matter at this stage shortly, the case for the prosecution in <ORG> was that while these three men were performing their devotions in the manner we have described at the Shiva Temple, they were attacked by some eight Muslims. <NAME> and <NAME>, the pujari, were both injured-the former grievously while the third man, <NAME>, ran away. It is said, moreover, that another of the party of attackers seized the hand bell out of the pujari's hand and made off with it. It is also alleged that all, or at any rate some of, the intruders burst into the temple with their shoes on and thereby defiled it.

7. Although at this stage we are engaged merely in giving a history of the matter, it will be convenient to pause and point out that the eight men in question who were charged in respect of this incident in the Court below were the eight respondents <NAME> alias Sardar, <NAME> alias Nisar, and <NAME> (who are respondents 1, 2 and 3 to the Appeal No. 312 and the Revision No. 296), <NAME>, <NAME> alias <NAME>. <NAME>, <NAME> alias Ahmad <NAME> Khan, Hazrat <NAME> and Aftab <NAME> Khan alias <NAME> who are respondents Nos. 26, 8, 2, 50 and 1 to the Appeal No. 300 of 1938 which is before us. These eight men were all charged in respect of this incident at the temple as well as in respect of their general participation in the disturbance which took place later at the bazar. "We shall have to deal with the charges made more particularly later on but it is sufficient for us at present to say that, so far as the temple incident alone is concerned, they were charged under Sections 323 and 325 with causing hurt to the two men we have mentioned and under Sections 295 and 296 in respect of defilement of the temple and of disturbing a religious assembly. Of the eight men charged with a specific participation in the attack on the temple three men only were convicted, namely <NAME> alias Sardar, <NAME> alias Nisar and <NAME>. As regards the first one, <NAME>, the learned Judge has found him guilty under Sections 296, 323 and 325,1.P.C., and has sentenced him to one month's imprisonment under Section 296, to one week's imprisonment under Section 323 and to three months' imprisonment under Section 325. As regards the second and third ones, <NAME> alias Nisar and <NAME>, the learned Judge has found them guilty of the same offences and has sentenced them to the same punishments. So much therefore, for the narrative of what happened at the temple itself.

8. The story then runs that <NAME> to the bazar and related there what had happened at the temple. Meanwhile <NAME> and <NAME> found their way to the bazar where <NAME>, who is a shop-keeper, was laid out on his own chabutra. A sensation ensued and a vehicle was sent for to take him to the hospital. At that point two crowds of Mahomedans, interspersed by a few Hindus, are said to have appeared, one crowd coming from the north headed by one <NAME> (who is respondent 4 to the Appeal No. 300) and the other crowd coming from the west headed by <NAME> (who is respondent 9 to the same appeal). We pause to observe at this stage that <NAME> and <NAME> are two of the leaders of the Mahomedan community in this place and are comparatively influential men. A volume of evidence has been directed against them which we shall have occasion to deal with later. At this stage, it is sufficient to observe that one of them is said to have led the crowd of between a hundred and two hundred men coming from the north, while the other is said to have led a crowd of similar proportions from the west. The crowd is said to have carried lathis and spears and the evidence is that they and their leaders were shouting "<NAME>," beat and loot the Banias. Their intention can only be described, if the evidence is true, as a more or less general intention to loot the bazar and beat the Banias. Apart therefore from the temple incident, the subject-matter of the remaining charges against the respondents relates to the looting of the bazar and they have been uniformly charged under Sections 395 and 397 with dacoity and with using deadly weapons to that end and also under Sections 323 and 325 with causing hurt. To put the matter shortly, we have therefore to deal with a situation on this morning in which an attack was made by eight men on the temple at about seven in the morning and in which about an hour later there is said to have been a general looting of the bazar by two crowds of Mahomedans. That, of course, is assuming that the prosecution story is substantially true. This is a general outline of what is said to have happened.

9. We think it convenient to pause at this stage to make some observations upon the charges which have been made against the respondents. They are all uniformly charged under the same Sections, 120B (conspiracy), 395 and 397(dacoity), 323 and 325(hurt), 435(arson) and 295 and 296(defilement and disturbance of worship). We think that these charges have been framed in a somewhat injudicious and indiscriminate manner. Apart altogether from the truth of the story, we think that a charge under Section 147, Penal Code , whether in addition to or in substitution for some of the existing charges, would have been appropriate to the bulk of the persons who were accused. And, observing as we do that a charge under that Section was originally framed, we are at a loss to understand for what reason it was dropped. We can conceive no case in which such a charge upon the materials available would have been more appropriate and, if that course had been adopted, we cannot help feeling that the learned Sessions Judge would have saved himself a great deal of trouble and that we ourselves should have found our task much easier. As it is, the course has been chosen of charging the accused with a number of special, and in some cases highly technical, offences which must necessarily be difficult to prove.

10. We pass now to the charges themselves. The first is a charge under Section 120B for criminal conspiracy. We think that we can deal with this charge shortly, and at once, by saying that we agree with the learned Sessions Judge in thinking that there is not a vestige of evidence upon which such a charge can be successfully based. The evidence of conspiracy rests really upon the testimony of two witnesses <NAME> (No. 31) and <NAME> (No. 92); The former gives evidence of being sent for on the day previous to 18th November by <NAME> and <NAME> to a meeting at which, to put it generally, an attack on Hindus was discussed. No particulars are given and the witness is content to make such sweeping statements as:

All the accused present in Court excepting <NAME> and <NAME>, son of <NAME> alias <NAME>, were among the persons who had assembled at <NAME>'s kolhu.

11. As regards the other witness, <NAME>, his evidence is equally vague. He speaks of seeing a hundred or a hundred and twenty, five persons gathered at <NAME> kolhu about seven in the evening and of hearing them talk about "punishing the <NAME> in the morning." We do not think for a moment that any serious attempt can be made to base a technical charge of conspiracy on such evidence as this. The offence of conspiracy under Section 120B , Penal Code , is one which requires detailed and specific proof against each of the accused that he individually participated in a particular design to do a particular criminal thing. Here we can find no trace of any such conspiracy. We regret that the charge of criminal conspiracy was ever raised but we have no doubt that it was designed to be used as a means of bringing the crime home to this very large number of accused persons by means other than direct proof of their individual share in the events of this morning. Again we think, that if that was the object, it would have been far better to have done it by introducing a charge under Section 147 or to have relied simply upon Section 34 , Penal Code . The next charge against the respondents is a uniform charge under Sections 395 and 397 , Penal Code , read with Section 34 . This charge is based upon the attack by the crowds we have mentioned upon the bazar and upon the alleged presence of the appellants in one or other of those crowds. In many cases there is evidence before us of individual acts by individual appellants who were seen and recognized among the crowds. But in all cases we think that assistance is sought to be derived from Section 34 of the Code, for the purpose of implicating all the appellants in the hurt which was inflicted at both the temple and the bazar and in the looting which went on.

12. The next charge is the charge under Sections 323 and 325 which led to the hurt inflicted both at the temple and in the bazar. Apart from specific evidence relating to the injuries inflicted upon <NAME> and <NAME> at the temple there is very little evidence of the individual beating in the bazar and therefore Section 34 is consistently relied upon to support this charge against the majority of the appellants. The next charge is under Section 435 , I.P. C, and relates to arson. There is only one instance of anything being burnt and we think it right to say straightway that, so far as all the respondents are concerned against whom there is no specific evidence of their having individually taken part in that incident, we fail to see how any charge of arson can be established against them. This is, again, an instance, as we think, of an injudicious and indiscriminate sprinkling of the case with charges against the accused generally.

13. Finally there are charges under Sections 295 and 296 , I.P. C, founded on the alleged defilement of the Shiva temple at 7 A.M. in the morning by the men who entered with shoes on their feet and the alleged disturbance by them of the worship taking place there. It has to be observed that this charge is levelled not merely against the eight men directly involved but against every one of the hundred and twenty odd men who were charged in respect of the disturbance in the bazar. Here again, as we think, is an instance of the lack of discretion shown in framing the charges against the accused, inasmuch as we are at a loss to understand how any but the eight men in question can possibly be involved in the entry upon the temple or its defilement. It is wholly unreasonable, as we think, to suggest that there was any common intention to defile the temple or to disturb its worship running through the whole of the incidents of this day and common to all those who took part in them. We think therefore that the incident at the temple must be treated as a separate incident and we propose ourselves to do so. We have made these comments upon the charges partly because we desire to point out that, in our view, a very relevant charge under Section 147 has been omitted and partly to point out that we think that a minimum of discrimination has been shown in apportioning the others.

14. We now propose to deal particularly with the incident at the temple and the appeals against the eight respondents who are said to have been involved in it. As we have pointed out, three of these men, namely <NAME>, <NAME> and <NAME>, have been convicted under S3. 323 and 325 and 296 and have been sentenced to the terms of punishment to which we have drawn attention. The remaining five were acquitted. (After stating certain evidence the judgment proceeded further.) Upon this evidence and upon their admission that they were engaged in a fight at or near the temple, the learned Judge has convicted <NAME>, <NAME> and <NAME> but has acquitted the remaining five. The matter has caused us some little difficulty. But we have come to the conclusion, upon the best consideration of the evidence that we have been capable of giving it, that it would be unsafe to disturb the finding of the learned Judge. It is true that all eight of these men have been named by seven witnesses. As regards two of those witnesses however we scarcely think them satisfactory. <NAME> was only examined by the police ten or twelve days after the event while <NAME> seems to have left the place and gone to the jungle without telling anybody of what he had seen. He says he left "for fear of darogah" and, if so, he himself may have had a guilty conscience. Even <NAME> failed to tell the darogah what he had seen of the temple incident when he had an opportunity of doing so on the 19th. "Whatever might have been our view, had we had an opportunity of seeing and hearing the witnesses ourselves, we think that in this case we should not be doing right by substituting a judgment of our own for that formed by the learned Sessions Judge as to the credibility of the eye-witnesses. Moreover, it is possible, as we think, to regard the uniformity of these seven witnesses as a trifle suspicious. So far as <NAME>, <NAME> and <NAME> are concerned, they were all a little distance away and yet they all claim so particularly to have observed the incident as to be able to say exactly who it was that beat <NAME> and <NAME> respectively and who it was that snatched the bell. However keen their eyesight may have been, we are disposed to doubt this record of their uniformity of observation unless there has been some subsequent discussion between them. On the whole therefore as regards the five men other than <NAME> Mohammad Khan, <NAME> Ahmad and <NAME>y we are disposed to dismiss this appeal so far as it may relate to their participation in the incidents at the temple.

15. As regards the three men who have been convicted, we agree with the learned Sessions Judge in thinking that they must be convicted under Sections 323 and 325 (read with Section 34 ) in respect of the simple and grievous hurt inflicted upon <NAME> and <NAME> respectively and under Section 296 , I.P.C ., for voluntarily causing a disturbance to the assembly lawfully engaged in performing religious worship at the Shiva temple. For the purpose of Section 296 , we have no doubt that three persons gathered together for purposes of worship are sufficient to constitute an "assembly." We agree with the learned Sessions Judge in not convicting them under Section 295 because, in our view, there is insufficient proof as to what constitute the temple precincts which ought to be regarded as sacred. As we have observed, there is a minimum of proof as to the "layout" of the temple and we are not satisfied that it has been strictly proved that they encroached upon the shrine itself. The result therefore of this part of the appeal is that as regards <NAME> (No. 26), <NAME>, alias <NAME> (No. 8), <NAME> <NAME> (No. 2), <NAME>, alias <NAME>, son of <NAME>, (No. 1) and <NAME> (No. 50) the Appeal No. 300 is dismissed as against them so far as it relates to the incident at the temple.

16. As regards <NAME> alias <NAME> alias Nisar and <NAME> alias <NAME>, and so far as it relates to the temple incident, the Government appeal against their acquittal upon charges under Sections 120B and 295 , I.P.C ., is dismissed. So far however as the revision application in respect of these three men is concerned in respect of the inadequacy of their sentences under the charges in respect of which they have been convicted for the temple incident, we think that the sentences inflicted by the learned Sessions Judge are inadequate. It will be remembered that those sentences are respectively one month under Section 296 , one week under Section 323 and three months under Section 325 , all to run concurrently. We have been impressed by the fact that these men have already spent some considerable time in jail. We appreciate that, if these sentences are enhanced, it will involve their being brought back to jail. We have the delay in the hearing of this appeal also present in our minds. But, considering all these matters, we do not think that, in the circumstances of the case, justice will be done unless we order that the sentences imposed by the learned Judge be now enhanced and that each be sentenced to six months' rigorous imprisonment under Section 296 , to six months' rigorous imprisonment under Section 323 and to two years' rigorous imprisonment under Section 325 , all sentences to run concurrently.

17. We have now to consider the cases of the respondents in so far as they relate to the bazar incidents, as distinct from the affair at the temple. We have already said that we can find no reason to treat the temple and the bazar incidents as one transaction so as necessarily to implicate whether under Section 34 , I.P.C ., or upon the footing of an express "conspiracy" under Section 120B those involved in the bazar incidents in the temple affair or vice versa. And we therefore think that it is necessary to treat what happened in the bazar altogether separately from what happened at the temple.

18. We have already had occasion to observe the method of assessment of the value of evidence adopted by the learned Judge. This method is most marked in the case of the witnesses of the bazar incidents. He has in his judgment at p. 988 grouped the witnesses which have dealt with what he describes as the "loot-mar" at the bazar and he has considered their potentialities as truthful or untruthful witnesses. We could hardly have deprecated this display of industry had it been followed at any stage by a critical examination of their evidence on its merits, nor do we desire it to be thought that we consider such considerations as the relationship of witnesses to complainants and so forth as matters entirely to be ignored. But we find a tendency too readily to discard the evidence of these witnesses wholly upon personal-and in our view in may cases insufficient grounds without any apparent examination at all of what the witnesses have actually said. For instance, witnesses related to other prosecution witnesses are, upon that ground alone, often ignored. Witnesses indebted to the Vaishes are 'per se' disqualified from giving truthful evidence. Complainants themselves are contemptuously dismissed as, on that account, unreliable, notwithstanding the fact that in many cases, such as the identification of their own looted property, they are the appropriate witnesses to give, if not the only persons who can give, the necessary evidence. Even the tenants of the complainants are, on that account, to be disbelieved. These are instances of the way in which the learned Judge has classified the various witnesses and, as we think, without a sufficient examination of the evidence itself, has dismissed almost all of them from his mind. We scarcely think that this method of approach was the right one, though we are far from saying that the learned Judge would not have been justified in bearing in mind most of the considerations he has raised in arriving at the true value of the evidence given by each individual witness. These methods have made our own task doubly difficult, as we have had to examine with the minutest care the evidence of each witness without in most cases the assistance of any real expression of the Judge's own views upon it. For that reason we know of no other way in which we can adequately deal with the case, than to take each individual respondent's case and to deal with it separately.

19. Before dealing with the cases of the individual respondents, there is one thing more we have to say in deference to Mr. <NAME>'s able argument before us. It concerns the principles which ought to be adopted by <ORG> in considering appeals of this kind at the instance of the <ORG> under Section 417 , Criminal P.C. We appreciate fully that, as a matter of jurisdiction, the whole case is at large before us both as to the facts and as to the law. But it is, in our view, impossible to refuse to face the fact that there is a difference between the consideration of a case upon an appeal of this kind and its consideration when 'res integra' in the Court below. We are content to be guided-as indeed we must be guided-by the principles laid down by <ORG> in <CITATION> (1934) 21 AIR PC 227 which we think clearly indicates what limits are in practice set to the discretion of <ORG> in a case of this kind. As <ORG> has pointed out in the first and fourth of the matters it has expressly alluded to, <ORG> will be slow to disturb a finding of fact arrived at by a Judge who has had opportunities for assessing the value of evidence which <ORG> has not had. We think that <ORG> pursuing this principle will be slow to substitute a view of the facts of its own for an opposite view of the facts held by the Judge below, where the latter are, upon the evidence, reasonable views, even though the Judges in <ORG> might have preferred a view of their own if the matter had been 'res integra'. Moreover, as has also been pointed out by <ORG>, the presumption of innocence and the title of the accused to the benefit of any doubt are certainly not lessened by the fact that they have been acquitted at their trial. We have tried to adopt these principles in considering the cases of individual respondents in this appeal and we have been slow to disturb a finding of fact by the learned Judge except where we have come to the conclusion that, notwithstanding the advantages enjoyed by him in seeing and hearing witnesses, the conclusions he reached were wrong.

20. We shall now take the cases of individual respondents. We shall in each case indicate only whether or not they ought, in our judgment, to have been found by the learned Judge, on the evidence before him, to have participated in the looting and we shall leave till later an exact discussion of what offences those who ought to have been convicted have been guilty of.

21. (1) <NAME> alias <NAME>. This man is one of those who are alleged to have taken part in the affair at the temple and in whose case we have already dismissed the appeal by the Government against his acquittal upon charges so far as they relate to that incident. He was also acquitted at the trial of any participation in the bazar incidents and we have now to deal with the appeal in that respect also. We have already mentioned the report, Ex. A-64 which <NAME> rendered at about 1 P.M. on the day in question at the Basi police station. Mr. <NAME> who appears on behalf of a large number of the respondents has argued that the document is not admissible in evidence for any purpose. He puts the matter in this way. He says that A-64 is not the first information report and that it is obvious on its face that it was not recorded as such. We agree with him that A-64 was not itself the first information report in this case, having been recorded only at 1 p. M., some hours after the actual first information report (Ex. A-1) had been lodged by <NAME> at Siyana Police Station at 10 A.M. Mr. <NAME> then says that the investigation had started before A-64 was recorded and points to the facts that police officers were at the scene at or about 10 A.M. With this too we agree. But Mr. <NAME> then goes on to say that, by virtue of Section 162(1) , Criminal P.C., the Ex. A-64 must be treated as having been "made...to a police officer in the course of an investigation" and on that account cannot be used by the prosecution "for any purpose," including, of course, the purpose of corroborating its author's own evidence under Section 157 , Evidence Act .

22. The real point to be determined is whether on the particular facts of the case, <NAME> statement given and recorded at the Basi police outpost at 1 P.M. on 18th November was a "statement made...in the course of an investigation" under the Code of Criminal Procedure. Conceding that the Ex. A-1 was the first information report and that an investigation pursuant to it was on foot at 11 A.M. we still do not think that the Ex. A-64 recorded a statement made "in the course of" the investigation. We have to consider what is meant by the words "in the course of." The view which Mr. <NAME> presses upon us is that they simply define the period of time between the moment the investigation started and the moment it ended and no statement made during that interval can ever be used, whatever are the circumstances in which it is made. He asks us to treat the words solely as marking a span of time. The other view is that the words "in the course of" import the meaning that the statement has to be made, not merely after the investigation has started, but as a step in, or in conscious prosecution of, the investigation itself.

23. We cannot help feeling that to confine the words merely to a particular space of time puts too narrow a construction on them. Had that been the real intention of the <ORG>, we cannot help feeling that it would have employed more simply the expression "after an investigation has started." Moreover, we may consider what the purpose of the Section is. As it seems to us it is to protect accused persons from being prejudiced by statements made to police officers who by reason of the fact that an investigation is known to be on foot at the time the statement is made, may be in a position to influence the maker of it and, on the other hand, to protect accused persons from the prejudice at the hands of persons who in the knowledge that an investigation has already started, are prepared to tell untruths.

24. In the present case, the facts, as we find them are simple. <NAME> left Amarpur at about 9 A.M. but we think that he did not leave for the purpose of making a report at all. We accept his evidence that he went to get help or possibly to get himself out of the way. If he had then had the making of a report in his mind he would certainly not have gone by a round about way to a mere police outpost at Basi. We believe him when he says that he only decided to make the report when urged to do so by his zamindar. It is true that he knew at that time that <NAME> had started out to make a report at <NAME>. But he did not know, and could not have known, that an investigation had started in consequence of that report. We think that, an investigation starts when the first step towards investigation is taken by the police. It did not by any means follow from the fact that <NAME> had started for <NAME> that an investigation was, or even would be on foot, for 'non constant' that <NAME> even reached <NAME> or, if he did, that an investigation had started in consequence of his report. We think that the true view is that <NAME>'s report was a report which was made quite independently of, and in no relation to, any pending investigation. It was not designed to promote a pending investigation in any way but to start one. It had, in our opinion, no reference at all to the investigation which had in fact begun from <NAME>. And, for these reasons, we think that it is not possible to say that it was made "in the course of" the investigation of the case which began with <NAME>'s report at <NAME>.

25. We take the view that the words "in the course of" in the context of this Section import that the statement must be made as a step in a pending investigation to be used in that investigation. We do not think that the words "in the course of" refer merely to that period of time which elapses between the beginning and the end of the investigation. We think that the exact shade of meaning of the words "in the course of" may well vary according to their context. Obviously, if they themselves qualify a period of time (such as "in the course of the year") they are used to denote a span of time. If, on the other hand, they qualify a continuing process (such as "in the course of the proceedings") they denote, in our view, something more than a mere period of time. It is a dangerous practice to take words from one statute to illustrate the meaning of words in another statute but we nevertheless venture, in order to illustrate our meaning, to point out the words used by Lord <NAME> in <ORG> v. <NAME> or <NAME> (1918) AC 304 at p. 321 in relation to the words "in the course of employment" used in the English Work-men's Compensation Act , 1906. He says:

In my view 'in the course of employment' is a different thing from during the period of employment.' It connotes, to my mind, the idea that the workman or servant is doing something which is part of his service to his employer or master....

26. It serves to illustrate what we mean. We are encouraged to find that <ORG> at Patna has expressed the same view on facts which are, we think, indistinguishable from those with which we are dealing: <CITATION> (1936) 23 AIR Pat 11. If an opposite view is to be implied in the decision of a two Judge Bench of <ORG> in <CITATION> (1931)18 AIR Cal 745, we regret that we should be unable to follow it. In the result, therefore, we think that the Ex. A-64 is an admissible document, admissible for the purpose of corroborating the evidence given by <NAME> himself. The learned Judge has however himself discarded this document altogether in the case of every one of the accused persons whom it implicated upon the sole ground that it "cannot be given any weight." We regard as slight the Judge's reasons which appear at p. 985 of the record for dismissing A-64 from his mind altogether as evidence confirming the oral testimony of <NAME>. He observes that "there was no necessity for making a second report and that too at a different police station."

27. He says that A-64 was made "after some consultations in order to add some facts." And he concludes by commenting that <NAME> had "failed in satisfactorily explaining the delay in making the report." We ourselves have not been able to dismiss this valuable exhibit so lightly as a piece of evidence corroborative under Section 157 , Evidence Act , of <NAME>'s own evidence. It is true that Amarpur is situated within the police station jurisdiction of Siyana and that Basi is only an outpost. It is true also that the report was made at Basi some five hours after the affair began at Amarpur. But <NAME> in his evidence has, as we have already said, explained and to our minds satisfactorily explained his movements during the intervening period. He first went to Narsena village and then to Daulatpur to tell his zamindar about what had happened. He got to the last mentioned place about 10 A.M. and waited an hour before seeing the zamindar. The zamindar gave him what was unquestionably good advice and told him to go to the nearest police establishment which happened to be an outpost at Basi three miles away and to make a report. That he did, reaching there about half an hour after noon. We do not find anything very extraordinary in this man's movements nor in his making of the report, as he was obviously unaware that any other report had been actually made and he was only doing what the zamindar had advised him to do. He did not set out with the object of making a report. Nor do we think it necessarily very strange that he had first gone to several villages in an attempt to get help. <NAME> told his story to the darogha on the same day. There is nothing in his story as given in evidence in <ORG> which, as we read it, is prima facie untruthful. In our view, therefore, Ex. A-64 is a valuable piece of evidence in so far as it serves to corroborate what its author has himself said in evidence. It named eleven men specifically as being implicated in the bazar incidents. We do not wish to be thought to assert that it is, by itself by any means conclusive. We only say that we regard it as a valuable piece of corroborative evidence not to be ignored in dealing with the evidence as a whole against those men whom it implicates. We have dealt with this Ex. A-64 at some length in the case of this particular appellant as it occurs in the case of several others as well and we do not desire in each case to set out again our particular reasons for relying upon it to the extent which we have indicated.

28. Apart from this exhibit and the evidence of <NAME> himself, there are only two witnesses who give evidence implicating this respondent; one a boy of twelve years old who gave his statement to the police on 20th November and the other a Chamar named <NAME> who only made his statement to the investigating officer on 1st December. The latter himself has said that between the date of the incident and the making of his statement to the police he told no one that he was a witness of the incidents that occurred in the bazar. We are not prepared to disagree with the learned Judge in declining to rely upon these two men. We are left, therefore, with the evidence of <NAME> only and its corroboration by Ex. A-64. In all the circumstances we are not disposed, on this evidence standing alone, to disturb the finding of the learned Judge in respect of this man and to hold that he has been satisfactorily proved to have taken part in the rioting in the bazar.

29. These respondents are numbered according to the numbers in the record of the proceedings on appeal. (2) <NAME> alias <NAME> man is not named in either the Ex. A-64 which we have already discussed or in the Ex. A-1, which was the first information report filed by the chowkidar, <NAME>. His case, therefore, rests entirely on the evidence of eye witnesses. He too, is alleged to have been engaged in the temple incident but has been acquitted in respect of those charges. There are only three witnesses against him, a boy, <NAME>, aged 9 or 10, who is a nephew of the complainant <NAME> and who appeared to the learned Judge to be "tutored"; another boy, named <NAME> who is only twelve years old, whose cross examination was not altogether reassuring; and another witness, <NAME>, who admits to having very poor vision. We think that, in the absence of any form of corroborative evidence, the learned Judge cannot be criticized for his acquittal of this man and that the appeal in respect of him must also be dismissed.

30. (3) <NAME> son of <NAME>. This man also has been altogether acquitted by the learned Judge. We think that on the evidence he ought to have been convicted. He is one of those who are named in the Ex. A-64, the corroborative value of which we have already discussed; and in addition there are ten eye witnesses against him. It is true that the value of the evidence of the eye witnesses varies. We have had to examine the evidence of each eye witness in relation to each respondent individually.

31. At this point we meet a peculiar phenomenon which runs through a good deal of the evidence given in connexion with the case, that is to say the identity of the identifications given by various sets of witnesses. This is not altogether an easy matter. For while any two or more men may well have been in a position to recognise a particular group of rioters and those only, we cannot dismiss from our minds that where witnesses who have no obvious connexion with one another furnished lists and in particular long lists of identical people whom they say they have recognized among the looters, there is a possibility that this identification is the result of collaboration between them rather than of actual observation. We shall indicate these witnesses as we reach them. At this stage we think that the true principle to adopt is, while not necessarily discarding their evidence altogether, to regard it, nevertheless with a great deal of suspicion unless it is confirmed from other reliable sources. This principle we have adopted throughout the case. (The judgment then discussed the case of <NAME>, considered the cases of respondents 4, 9, 5, 6 and 7, individually and proceeded to consider that of respondent 8.) There are no less than 12 eye-witnesses against him. The first is <NAME>, who was examined on 18th November. He has given identical evidence with no one else and seems to us to be reliable. The learned Judge has disbelieved him primarily because he was a complainant. We are at a loss to understand upon what principle a complainant who after all is one of the persons most likely to know the facts should "ex hypothesi" be unworthy of belief. We can understand that his evidence ought in all cases to be carefully tested; but why it is to be supposed to suffer an irrebuttable presumption of unworthiness we are at a loss to comprehend. We do not propose to go through the evidence in detail of all these witnesses, of whom there are 12. It suffices to say that we can find nothing which prima facie discredits the evidence of such of them as the man we have just mentioned, of <NAME>, who had every opportunity to recognize the witness who broke into his own shop, of <NAME> who made the report, of <NAME> and of several others.

32. We think that the evidence against this respondent is conclusive, even without the assistance of any evidence of what property was traced to him, to show that he was one of those who engaged in looting in the bazaar on this morning. He ought, we think, to have been convicted. (The judgment then resumed discussion of cases of certain accused and then proceeded to consider that of respondent 32.) In this case the respondent is only charged with "receiving" the proceeds of the dacoity. He has been acquitted by the learned Judge, and, as we think, rightly. We do not think we need discuss the case at length. The respondent in his own statement has said that he left Amarpur several days before the 18th November and went hawking in the outstations. There is no evidence that this is not true and no attempt has been made to show that he was ever in his house between the 18th (when the goods were stolen) and the 21st (when ]they were discovered). We think that no man can be convicted under Section 412 , I.P.C ., for "receiving or "retaining" stolen goods unless he is shown at the material time to have been in possession or control of the place where they were discovered or at least to have had some knowledge of their deposit there. We have not overlooked Section 114 , Evidence Act . Moreover, we are not satisfied as to why this man's house was searched twice on consecutive days, nor that access to the interior could not have been had through the "slats" which apparently formed the wall. We think that the appeal must fall to be dismissed in this case. (The judgment then dealt with the cases of the rest of the accused and concluded as follows.) First we dismiss the Appeals Nos. 300 and 312 so far as they relate to the acquittal of such of the respondents as were affected by them upon charges under Sections 120 B, 295, 296, 325 and 435, I.P.C . Secondly, we dismiss the Appeal No. 300 against the acquittal of the respondent <NAME>, son of <NAME>, upon the charge against him under Section 412 , I.P.C . Thirdly, we allow the Appeal No. 300 against the acquittal of the respondent, Mt. <NAME>, wife of <NAME>, upon the charge against her of receiving, except that we alter the conviction to one under Section 411 , I.P.C . Fourthly, we dismiss the Appeals No. 300 and 312 so far as they relate to the acquittal of such of the respondents as are affected thereby on the charges under Sections 395 , 397 and 323 read with Section 34 , I.P.C ., except in the cases of the following respondents: (3) Dhoomi, son of Munna; (4) <NAME>, son of <NAME>; (9) <NAME>, alias <NAME>; (5) Mahtab, son of Dhooni; (6) <NAME>, son of <NAME>; (7) <NAME>, son of <NAME>; (8) <NAME>, alias <NAME>; (16) Ghafoor, son of Ramzani; (19) <NAME>, alias Madda, son of <NAME>; (27) Shadi, son of Shubrati; (28) Tulshi, son of Raghubansi; (29 and 30) <NAME> and <NAME>, sons of Mohammad <NAME>; (31) <NAME>, son of <NAME>; (34) <NAME>, son of <NAME>; (35) <NAME>, son of <NAME>; (36) <NAME>, son of <NAME>; (37) <NAME>, son of <NAME>; (46) <NAME>, son of <NAME>; (49) <NAME>, son of <NAME>; (56) <NAME>, son of <NAME>, <NAME>, alias Sardar, son of Mohammad <NAME>, <NAME>, alias <NAME>, <NAME>, alias <NAME>la, son of <NAME>, <NAME>, son of Nathua, <NAME>, son of <NAME> Rahman, <NAME>, son of <NAME>.

33. Fifthly, in respect of the above mentioned 27 respondents, we think that they must all be convicted upon charges against them under Sections 323 and 395 both read with Section 34 , I.P.C ., in that they and each of them, in pursuance of the common intention of all of them, committed dacoity in the bazaar of Amarpur on 18th November 1936 and therein caused hurt. For the reasons in respect of each of them which we have discussed at such length we have no doubt that they all individually took an active part in the looting that went on. Moreover, their actions and the evidence which we have accepted of the cries of the leaders of the Mahomedan crowds to the effect that the Hindu Banias were to be "beaten" and "looted" to our minds, point clearly to an intention common to all the participants in the disturbance that the Hindu shops were to be looted and, when occasion offered Hindus injured. We do not think that we can reasonably come to any other conclusion. For this reason, we are disposed to make use of Section 34 , I.P.C ., in convicting all of them under Sections 395 and 323 rather than to seek out individual acts of looting and assault. We do not include a conviction under Section 325 , I.P.C ., because (with the exception of the injury to <NAME> at the temple in respect of which the respondents <NAME>, <NAME> and <NAME> have already been convicted by the Sessions Judge) no other grievous injury is proved to have been inflicted throughout the course of the whole affair. The convictions of these three men under Section 325 will of course stand, in addition to the conviction of the first two under Sections 395 and 323 , read with Section 34 , which we now add. Nor do we think fit to make use of Section 397 , I.P.C ., as we do not think that the use of "deadly weapons" has necessarily been established against any individuals.

34. Seventhly we observe that in the cases of the four men, <NAME>, alias <NAME>la, <NAME>, <NAME> and <NAME> who are respondents 4, 5, 6 and 7 to <ORG> they have already been convicted by the learned <NAME> Judge in respect of offences under Section 380 , I.P.C . For the sake of uniformity, and because their offence is now merged in the larger offence of dacoity, of which we have convicted them, we think it right to set aside these convictions and the sentences passed in respect of them and we do so accordingly. It remains for us to consider the question of the sentences and in that connexion we shall take into our consideration the remaining application (Revision No. 296 of 1938) on the part of the <ORG> for a review of the sentences passed by the learned <NAME> Judge. In the ensuing sentences which we think fit to pass, whether by way of revision of the sentences already passed by the learned Judge or upon the convictions which we ourselves have made, we have in all cases taken into account that they have already passed some time in jail or in custody. Three of the convicted respondents, namely <NAME> (No. 3), <NAME> (No. 5) and <NAME> (No. 28) are charged also under Section 75 , I.P.C ., and their previous convictions have been either proved or admitted. We shall therefore in their cases inflict somewhat more severe sentences.

1. As to <NAME>, <NAME>, alias <NAME> and <NAME>, alias <NAME> (respondents 1, 2 and 3 to Appeal No. 312) these men now stand convicted under Sections 296 , 323 and 325 , I.P.C . They have been sentenced by the learned Sessions Judge to undergo rigorous imprisonment for one month under Section 296 , one week under Section 323 and three months under Section 325 . We consider that these sentences were wholly inadequate having regard to what they did. We sentence each of these men, namely <NAME>, <NAME> and <NAME>: (a) Under Section 296 , I.P.C . to six months rigorous imprisonment; (b) under Section 323 (read with Section 34 ), I.P.C . to six months' rigorous imprisonment; (c) under Section 325 (read with Section 34 ), I.P.C ., to two years' rigorous imprisonment.

2. As to all the twenty-seven men in whose cases we are allowing this appeal in respect of the looting in the bazaar and whose names we have set out above, they each stand now convicted also under Section 395 , read with Section 34 , I.P.C . We have carefully considered whether there is any ground (other than in relation to Section 75 ) upon which we can, and ought, to differentiate between them. We' recognize that they differ in age, some being under twenty and others old men. We have moreover observed that a leading part was taken in the affair by <NAME> and <NAME>. But, on the whole, we have come to the conclusion that there is no sufficient reason for us to differentiate between them. The sentence which we think it proper to pass upon all of them, except <NAME>, <NAME> and <NAME>, in respect of the offence under Section 395 , read with Section 34 , I.P.C ., is that they each undergo three years' rigorous imprisonment. In the cases of <NAME>, <NAME>, and <NAME> we sentence them to five years' rigorous imprisonment.

3. As regards the respondent, <NAME>, who now stands convicted under Section 411 , I.P.C ., we shall sentence her to undergo rigorous imprisonment for a period of three months.

4. All sentences will run concurrently. Those respondents who have been convicted by us and those whose sentences have been enhanced must surrender to their bail. The bail bonds of the others are cancelled.


JUDGMENT <NAME>, C.J.

1. This appeal by special leave is directed against the judgment of the Circuit Bench of <ORG> at Delhi (<NAME> reversing the order dated December 6, 1965 of the learned Magistrate and the judgment dated March 1, 1966 of the Additional Sessions Judge, and directing that all the respondents be discharged under Sub-section (2) of Section 253 of the CrPC in respect of the offences alleged by the appellant before us. In order to appreciate the points it is necessary to state the facts. The appellant is <NAME> (General Attorney) of <NAME>, He filed a complaint under Section 447 / 379 and 428 / 34 I.P.C. The allegations in brief were that <NAME> was the owner as Dholidar and occupancy tenant of the entire land comprising in Khasra No. 129 Civil Station, Delhi, measuring 27 Bighas and 14 Biswas. There is a Gurdwara known as Gurdwara Majnu-ka-tilla which was built in another portion of Khasra No 129 covering an area of 4 Bighas and 7 Biswas and was managed by the accused Sardar <NAME>, Manager, <ORG>, <NAME>, President Gurdwara Parbandhak Committee and <NAME> Secretary, <ORG>. There were certain Sewadars which the appellant cited as accused without naming them. The appellant recited the previous litigation between the parties and alleged that the committee having lost every where in Court ultimately took to the law of jungle and to wreak their vengeance and to create evidence in their favour accused Nos. 1, 3 and 4 alongwith accused No. 2, in furtherance of the common intention, in the absence of the owner and the appellant on the morning of March 29, 1964 by illegally trespassing on the said orchard employed coolies and some servants of the Gurdwara and totally destroyed it and closed watering well and leveled the whole thing to the ground and they illegally & dishonestly removed the trees from the orchard and took them into possession.

2. It was further alleged that the accused have no interest or title in the land which they trespassed illegally and destroyed the whole Orchard. The complainant gave a lengthy statement before <ORG>, Delhi. He alleged that the land was in possession of his ancestors and continued to be in his possession. He relied on copies of <ORG> relating to the land in dispute and <NAME>. He gave a statement in support of the complaint. He produced some witnesses including P.W. 5 <NAME>, Patwari, who deposed that the land measuring 27 Bighas and 8 biswas was under the possession of <NAME> and the land measuring 4 Bighas arid 7 Biswas was under the possession of <ORG>. We need refer to the rest of the evidence.

3. The <ORG> after having gone through the enquiry report and the evidence on record came to the conclusion that there was a prime facie case Under Sections 427/447/379/34 I P.C. against the accused <NAME>, <NAME> and <NAME> only. He sent the case to the Court of <NAME>, Magistrate 1st Glass, for disposal according to law.

4. On December 6, 1965 an application was put in Under Section 253(2) Criminal Procedure Code, for discharging the accused persons The main ground taken was that the decree passed in favour of <NAME> by <NAME>, Sub. Judge had been set aside in appeal by <NAME>, additional District Judge, who had remanded the case to the trial Court. This judgment of <NAME> was one of the documents relied upon by the complainant to show his title. It was further stated in this application that the dispute was prima facie of civil nature and the complaint had been filed to harass the accused. The Court on December 6, 1965 wrote a short order which reads as follows:

Heard the parties. This Court is not to sit in judgment over the findings of learned Civil Judge or Addl.S.Judge but is only concerned with possession and Crl. trespass over such possession of land in dispute. The matter of title is to be decided upon by competent Civil Courts. I see no reasons to discharge the accused at this stage or to stay the proceedings also verbally requested by Counsel for the accused. Application is rejected. Case to proceed with prosecution evidence today.

5. The accused filed a revision petition before the Additional Sessions Judge, Delhi but that was dismissed on the ground that there was no ground for the discharge of the accused. As far as the title was concerned the learned Addl. Sessions Judge observed.

<ORG> has as a matter of fact, to record its own findings on the points disputed before it and the discretion of the learned Magistrate in not staving the proceedings in the complaint to await the decision in the civil suit cannot be interfered with.

6. The accused then filed a revision before <ORG>. The learned Judge allowed the petition on the ground that the real dispute was regarding the title to the land on one part of which the Gurdwara was situated and on the other part the alleged criminal tres pass was committed by the accused. Although the judge said that the question of title was not directly relevant, he seems to have decided the case on the question of title for he referred to the previous history of the litigation between the parties and observed:

The suit filed by <NAME> for a declaration to the effect that he was in possession of the land in dispute, of which possession was being claimed by <ORG>, has been dismissed. In the face of the decree of the civil Court in clear that the complainant had no right to from the land in question.

The learned Judge observed;

I have also scanned through the evidence so far recorded at the trial of this case. Even if the allegations made therein are deemed to be true, they do not appear to disclose the commission of any of the offences with which the petitioners are sought to be charged. The charges against the petitioners were there fore, clearly groundless and the learned Magistrate, in my opinion, unjustifiably declined to exercise his jurisdiction Under Section 253(2) of the CrPC in refusing to discharge the accused.

7. We are unable to appreciate this conclusion of the learned Judge. If the allegations are true there is no doubt that the accused have committed the offence charged against them. Of course, it is another matter if the allegations are ultimately proved not to be true.

8. We have deliberately not referred to the previous litigation between the parties for any observation which we may make may affect either the civil suit or the fate of this case. It seems to us that <ORG> while saying that it was not concerned with the title had somehow felt that the title rested with the accused-respondents.

9. The learned Counsel for the respondents. No.1 Mr. <NAME> tried to persuade us to go into the question of title and he said that the question of possession was dependent on title. He referred to Ex.P.11, an extract from <NAME> and wanted us to infer from it that <NAME> had been prepared on the basis of title and not on the basis of actual possession. On behalf of respondent No. 2 <NAME> argued that the revenue records were false and the litigation showed that the title was with the accused. <NAME> appearing for Respondent No. 3 added that the complaint was not filed immediately.

10. We need not discuss these points in detail because it might possibly prejudice respondents case but it seems to us that the High, Court erred in discharging the accused Under Section 253(2) Criminal Procedure Code. As held by the learned Sessions Judge a prime facie case has been made out and the accused must stand trial.

11. In the result the judgment and order of <ORG> is set aside and we direct that the trial should proceed as expeditiously as possible.


<NAME>, J.

1. This appeal is brought by the Governor-General in Council from a decree made by <ORG> in its original jurisdiction on March 17, 1942. In proceedings commenced in that Court against the respondent, the Province of Madras, the appellant claimed that the Madras Act IX of 1939, known as the Madras General Sales Tax Act of 1939 and hereafter referred to as "the Madras Act," in so far as it purports to levy a1 tax on first sales in Madras1 of goods manufactured or produced in India is, except in respect of certain excepted goods, ultra vires and beyond the competence of the <ORG> of the respondent. <ORG> dismissed the appellant's suit following its previous decision in an appeal from <ORG> in a suit in which the present respondents were appellants and a firm called <ORG> were respondents and the validity of the same provisions of the same Act was in issue. This case will be referred to as the <ORG> case prov. Of Mad. v. <ORG> (1942) 46 C.W.N. (F.R.) 38

2. The legislative powers of the Federal and <ORG> respectively are defined in the Government of India Act, 1935, sometimes called " The Constitution Act ," and it will be convenient to refer to them before examining the provisions of the impugned Madras Act.

3. Section 100 of the Constitution Act provides as follows :

(1) Notwithstanding anything in the two next succeeding subsections <ORG> has, and a Provincial Legislature has not, power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to this Act (hereinafter called the 'Federal Legislative List').

(2) Notwithstanding anything in the next succeeding subsections <ORG>, and, subject to the preceding subsection, <ORG> also, have power to make laws with respect to any of the matters enumerated in List III in the said Schedule (hereinafter called the 'Concurrent Legislative List').

(3) Subject to the two preceding subsections, <ORG> has, and <ORG> has not, power to make laws for a Province or any part thereof with respect to any of the matters enumerated in List II in the said Schedule (hereinafter called the 'Provincial Legislative List').

(4) <ORG> has power to make laws with respect to matters enumerated in the Provincial Legislative List except for a Province or any part thereof.

Entry No. 45 of the Federal Legislative List is as follows:

45. Duties of excise on Tobacco and other goods manufactured or produced in India except there follow certain exceptions.

Entry No. 48 of the Provincial Legislative List is as follows:

48. Taxes on the sale of goods and on advertisements.

4. It is upon these two entries respectively that the parties rely, the respondent contending that Entry No. 48 of the Provincial Legislative List authorises and justifies the impugned provisions1 of the Madras Act, the appellant contending that so far as those provisions purport to impose a tax on first sales they in effect impose a duty of excise and are therefore an encroachment upon the power given exclusively to <ORG> by Entry No. 45 of the Federal Legislative List.

5. Before further considering the provisions of the Constitution Act it will be convenient to examine somewhat closely the Madras Act. For in a Federal constitution, in which there is a division of legislative powers between <ORG>, it appears to be inevitable that controversy should arise whether one or other <ORG> is not exceeding its own, and encroaching on the others, constitutional legislative power, and in such a controversy it is a principle, which their Lordships do not hesitate to apply in the present case, that it is not the name of the tax but its real nature, its "pith and substance" as it has sometimes been said, which must determine into what category it falls.

6. The Madras Act which received the assent of the Governor of Madras on June 4, 1939, is entitled " An Act to provide for the levy of a general tax on the sale of goods in the Province of Madras." Its preamble recites that it is expedient to provide for the levy of a general tax on the sale of goods in the Province of Madras. By Section 1 it is provided that this Act may be called "The Madras General Sales Tax Act, 1939," and that it is to extend to the whole of the Province of Madras. The rest of the Act does not belie its title or its declared purpose. Section 2 contains a number of definitions of which it is necessary to refer only to the following:

(b) 'dealer' means any person who carries on the business of buying or selling goods,

(h) 'sale' with all its grammatical variations and cognate expressions means every transfer of the property in goods by one person to another in the course of trade or business for cash or for deferred payment or other valuable consideration but does not include a mortgage hypothecation charge or pledge.

(i) 'Turnover' means the aggregate amount for which goods are either bought or sold by a dealer whether for cash or for deferred payment, or other valuable consideration provided that the proceeds of the sale by a person of agricultural or horticultural produce grown by himself or grown on any land in which he has an interest whether as owner, usufructuary mortgagee, tenant or otherwise, shall be excluded from his turnover.

7. ExplanationSubject to such conditions and restrictions, if any, as may be prescribed in this behalf:

(i) the amount for which goods are sold shall include any sums charged for anything done by the dealer in respect of the goods sold at the time of or before the delivery thereof;

(ii) any cash or other discount on the price allowed in respect of any sale and any amount refunded in respect of articles returned by customers shall not be included in the turnover.

(iii) where for accommodating a particular customer a dealer obtaining goods from another dealer and immediately disposes of the same to the said customer, the sale in respect of such goods shall be included in the turnover of the latter dealer but not in that of the former.

8. Section 3 , the taxing section, provides as follows:

3. (1) Subject to the provisions of this Act, every dealer shall pay in each year a tax in accordance with the scale specified below:

(a) If his turnover does not exceed 20,000 rupees, 5 rupees per month.

(b) If his turnover exceeds 20,000 rupees, one half of one per cent. of such turnover. Provided that any dealer whose turnover in any year is less than 10,000 rupees shall not be liable to pay the tax under this sub-section for that year.

Provided further (1) that in respect of the same transaction of sale, the buyer and the sellers shall not both be taxed but only one of them, as shall be determined by the rules made in this behalf under sub- section 2 , shall be taxed thereon and (2) that when the amount for which any goods were bought by a dealer has been included in his turnover the amount for which the same goods were sold by him shall not be included in his turnover for the purposes of this Act.

(2) The turnover for all the purposes of this Act shall be determined in accordance with, and the tax shall be assessed, levied and collected in such manner and in such instalment as may be prescribed by the Rules made by the Provincial Government in this behalf.

(3) Subject to any rules made under Sub-section (2) the assessing authority may fix the turnover of any dealer in any year at the amount of his turnover in the previous year.

9. Sections 4 and 5 provide for exemption from the tax imposed by Section 3 of certain classes of goods, and Section 6 for taxation of the sale of hides and skins whether tanned or untanned only at such single point in the series of sales by successive dealers as might be prescribed.

10. Section 7 provides for a rebate of one half of the tax levied on sales of certain goods for delivery outside the Province, Section 8 for the licensing and exemption of agents. Other sections provide the necessary administrative machinery for the assessment and collection of a tax on sales. Section 19 provides that <ORG> may make rules to carry out the purposes of the Act.

11. Under Section 3 (2) of the Madras Act <ORG> made rules which are called "The Madras General Sales Tax (Turnover and Assessment) Rules, 1939," and; under Section 19 further rules which are called "The Madras General Sales Tax Rules, 1939." To these rules which are of an elaborate and comprehensive character it is unnecessary to refer except to note that under Rule 4 (1) of the first-mentioned rules the gross turnover of a dealer for the purposes of the rules is to be the amount for which the goods are sold by him except that under Rule 4(2) in the case of certain goods therein enumerated the gross turnover is to be the amount for which the goods are bought.

12. Their Lordships have thought it desirable to refer to the provisions of the Madras Act in this detail in order to emphasise its essential character. Its real nature, its "pith and substance," is that it imposes a tax on the sale of goods. No other succinct description could be given of it except that it is a "tax on the sale of goods." It is in fact a tax which according to the ordinary canons of interpretation appears to fall precisely within Entry1 No. 48 of the Provincial Legislative List.

13. It is necessary then to consider the contention, which in the <NAME> case [1942] 46 C.W.N. (F.R.) 38 found favour with <ORG>, that the Madras Act so far as it imposes a tax on first sales of goods manufactured or produced in India is ultra vires <ORG>. This contention is thus clearly stated in the appellant's formal reasons on the present appeal : (1) a tax on the manufacturer or producer of goods on the first sale thereof is a duty of excise, (2) under the provisions of the Constitution Act the appellant has, and the respondent has not, power to impose a duty of excise, (3) the provisions of Entry No. 48 in the Provincial Legislative List must be construed subject to the provisions of Entry No, 45 in the Federal Legislative List.

14. The third reason thus stated rests on the opening words of Section 100 (1) of the Constitution Act "Notwithstanding anything in the two next succeeding sub-sections" and the opening words of Section 100(3) "subject to the two preceding sub-sections." Their Lordships do not doubt that the effect of these words is that, if the legislative powers of the Federal and <ORG> Legislatures, which are enumerated in List I and List II of the Seventh Schedule, cannot [fairly be reconciled, the latter must give way to the former. But it appears to them that it is right first to consider whether a fair reconciliation cannot be effected by giving to the language of <ORG> a meaning which, if less wide than it might in another context bear, is yet one that can properly be given to it, and equally giving to the language of the <ORG> Legislative List a meaning which it can properly bear. In this connection it must in the first place be observed that the contention of the appellant involves doing violence to the language of Entry No. 48 of the <ORG> Legislative List. For if his contention is upheld, the plain words "Taxes on the sale of goods" must be read as if the words "other than the first sale of goods manufactured or produced in India" were added by way of qualification. Bearing in mind first that the problem of the division of taxing power in a Federal Constitution was in general no new one and that the framers of the constitution! must in particular have been well aware of the controversies that had arisen in regard to "excise" and taxes on first or other sales, and, secondly, that the contention of the appellant would remove from the range of <ORG> taxation goods which had not been in the past, nor were likely in the future to be, the subject of an excise duty, their Lordships would be reluctant to adopt such a construction if any other was fairly open to them. The validity of the appellant's first reason must therefore be examined in order to see whether the Lists can be reconciled not by doing violence to the language of the <ORG> List but by giving some other than the meaning and effect, for which the appellant contends, to the relevant words of the Federal List.

15. Their Lordships would first observe (concurring herein in the cogent reasoning of <ORG> in the <NAME> case [1939] F.C.R. 18 that little assistance is to be derived from the consideration of other <ORG> Constitutions and of their judicial interpretations, Here there is no question of direct and indirect taxation nor of the definition of specific and residuary powers. The Indian Constitution is unlike any that have been called to their Lordships' notice in that it contains what purports to be an exhaustive enumeration and division of legislative powers between the <ORG> and <ORG>. Where there is such an enumeration, the language of the one list may be coloured or qualified by that of the other. The problem is different when on the one hand there are specific, and on the other residuary, powers.

16. The appellant's fundamental contention is that the power to impose a duty of excise, which is given to <ORG> alone by Entry No. 45 of the Federal List, entitles that <ORG> and no other to impose a tax on first sales of goods manufactured or produced in India. No other meaning, it is contended, can fairly be given to the words "duty of excise" than one which includes a tax on the first sales of such goods. If such a construction involves that violence must be done to the plain meaning of Entry No. 48 of the Provincial List, that, it is said, is contemplated and safeguarded by the opening words of Section 100 (1).

17. To their Lordships this contention does not appear well-founded. The term "duty of excise" is a somewhat flexible one : it may, no doubt, cover a tax on first and perhaps on other sales : it may in a proper context have an even wider meaning. An exhaustive discussion of this subject, from which their Lordships have obtained valuable assistance, is to be found in the judgment of <ORG> in In re The Central Provinces and Berar Act No. XIV of 1938.1 Consistently with this decision, their Lordships are of opinion that a duty of excise is primarily a duty levied upon a manufacturer or producer in respect of the commodity manufactured or produced. It is a tax upon goods, not upon sales or the proceeds of sale of goods. Here again their Lordships find themselves in complete accord with the reasoning and conclusions of <ORG> in the <NAME> case. The two taxes, the one levied upon a manufacturer in respect of his goods, the other upon a vendor in respect of his sales, may, as is there pointed out, in one sense overlap. But in law there is no overlapping. The taxes are separate and distinct imposts. If in fact they overlap, that may be because the taxing authority, imposing a duty of excise, finds it convenient to impose that duty at the moment when the exciseable article leaves the factory or workshop for the first time upon the occasion of its sale. But that method of collecting the tax is an accident of administration it is not of the essence of the duty of excise which is attracted by the manufacture itself. That this is so is clearly exemplified in those excepted cases in which the <ORG>, not the <ORG>, <ORG> has power to impose a duty of excise. In such cases there appears to be no reason why the <ORG> <ORG> should not impose a duty of excise in respect of the commodity manufactured and then a tax on first or other sales of the same commodity. Whether or not such a course is followed appears to be merely a matter of administrative convenience. So by parity of reasoning may the <ORG> <ORG> impose a duty of excise upon the manufacture of exciseable goods and the <ORG> <ORG> impose a tax upon the sale of the same goods when manufactured.

18. It appears then to their Lordships that the competing Entries No. 45 of the Federal List and No. 48 of the Provincial List may fairly be reconciled without adopting the contention of the appellant, and that the validity of the Madras Act cannot successfully be challenged.

19. Their Lordships would again emphasise that in coming to this conclusion they have regarded substance not form. The tax imposed by the Madras Act is not a duty of excise in the cloak of a tax on sales. Lacking the characteristic features of a duty of excise such as uniformity of incidence and discrimination in subject-matter, it is in its general scope and in its detailed provisions a "tax on sales," Their Lordships must not be taken as expressing any view upon the validity of any measure upon the substance of (which a different opinion might be formed.

20. For the reasons already stated their Lordships are of opinion that this appeal must be dismissed and they will humbly advise His Majesty accordingly.