JUDGMENT <NAME>, J.

1. Plaintiffs have filed this suit as mortgagors against the defendant who is the present mortgagee of an immoveable property situate at Chimna Butcher Street, Bombay, to restrain the defendant by an order and injunction of the <ORG> from selling the property on the ground that the proposed sale which was advertised for September 18 last was wrongful and not in accordance with the terms of the mortgage. The original mortgage deed dated May 31, 1935, was made between plaintiff No. 1 as the sole executor of his father's will along with plaintiffs Nos. 1 and 2 and one <NAME>, the heirs of plaintiff No. 1's father, as mortgagors on the one hand and <NAME> and <NAME> as mortgagees to secure repayment of the sum of Rs. 7,500 lent and advanced by the mortgagees. <NAME> died about March 3, 1936, and the plaintiffs are her only heirs and legal representatives according to the <ORG> law. By an indenture of transfer of mortgage dated January 22, 1940, the mortgage debt, which then amounted to Rs. 11,200, was transferred by the original mortgagees to the defendant, who was to have under the deed of transfer the full benefit of the covenants, power of sale and other powers and provisions contained in the mortgage deed for securing the repayment of the sum of Rs. 11,200. The due date for repayment was extended under the deed of transfer to January 22, 1941, with a further option to the mortgagors to extend the same to January 22, 1942, provided they paid interest regularly and otherwise observed and performed all the provisions and conditions of the mortgage. The rate of interest agreed upon was annas ten per cent, per month. After the deed of transfer the plaintiffs paid to the defendant Rs. 70 for interest on February 20, 1940, for the month ending February 19, and on May 13, 1940, they paid a further sum of Rs. 70 for interest for the month ending March 19, 1940. Thereafter the plaintiffs in spite of demands from the defendant failed to pay the interest agreed upon.

2. It is contended on behalf of the plaintiffs that the defendant was not entitled to have the property sold on two grounds: (1): that even if the due date of payment which was January 22, 1941, had been, under the circumstances contemplated by a clause in the mortgage deed which I will hereafter refer to, accelerated, the defendant had not intimated to the plaintiffs the exercise, of his option to call in the mortgage amount, and (2) because no notice of sale in writing as required by Section 69(2) (a) of the Transfer of Property Act , and as also provided for in the mortgage deed, was given to the plaintiffs. Defendant on the other hand contends that the plaintiffs were not entitled to any intimation of the exercise of the option. In paragraph 13 of his written statement he further contended that he was entitled to put up the mortgaged property for sale without the notice in writing required by Section 69 , but that contention was given up at the hearing by his counsel. Defendant also contends in paragraph 16 of his written statement that the plaintiffs are not entitled to claim any relief in this suit by reason of the order passed by the <ORG> on the notice of motion for interim injunction on September 18 last.

3. The application for interim injunction was made in terms of prayer (b) of the plaint on September 18 before recess, but as the sale was advertised for the afternoon of the same day, I ordered that notice of the application should be given immediately to the mortgagee i.e. the defendant. After the recess both parties appeared by counsel, and aconsent order was taken under which on the plaintiffs paying Rs. 500 to the defendant within two days the sale was to be adjourned for two months, but if the sum was not paid as ordered, the notice of motion was to be dismissed with costs. The words in the order "and the sale to proceed" set out in para. 15 of the written statement do not form part of the final order made by the <ORG> on that date. They were at first written down by me after the substance of the consent order arrived at by the parties, was mentioned to the <ORG>, but a little later, either upon some discussion in <ORG> or at the <ORG>'s own suggestion, the words which in my order ran as follows "and defendant to be at liberty to proceed with the sale" were struck out, presumably because it was not the <ORG>'s intention to decide the whole suit on an application for an interim injunction. Those words were at first written and even read out by the <ORG> to the parties, but as I have already stated, after some discussion or at the <ORG>'s instance, they were struck out. Defendant's counsel argued that even without the addition of these words the implied effect of the order of the <ORG> was that on failure to pay Rs. 500 within two days not only the notice of motion was to1 stand dismissed, but that the plaintiffs also were to lose their right to apply for and claim permanent injunction. This means in others words that by the order the <ORG> practically decided the whole suit. If that was so, there was no meaning in ordering the written statement to be filed) within ten days and expediting the suit without stating in so many words that the written statement was to be filed and the suit was to be expedited only if the sum of Rs. 500 was paid within two days. There would have been no need for a written statement, nor for expediting the suit, if on, the failurer to pay within two days the whole suit of the plaintiffs was to go by the board.

4. It is alleged in para. 1 of the written statement that the plaintiffs' suit is "misconceived" on the ground that under the terms of the mortgage and transfer of mortgage the plaintiffs could not restrain the exercise of the mortgagee's power of sale. At the hearing it was further argued that the suit as framed was not maintainable, because no suit can lie only for an injunction without at the same time claiming other relief. That is nowhere alleged in the written statement, and although as a point of procedure it can be taken at any time, counsel for the defendant has not even raised an issue upon it. He argued that as soon as the mortgagee became entitled to call in his moneys by reason of the acceleration of the date of payment, the mortgagors' right to" redeem accrued simultaneously to them, and as there was no prayer for redemption, the whole suit was bad. On the other hand plaintiff's counsel argued that ordinarily a mortgagor's suit for redemption could not be brought before the expiry of the stipulated period, that is, before the due date, and that if in the event of the due date being accelerated defendant as mortgagee became entitled at his option to call in the mortgage amount, he had not exercised that option by calling in the amount upon which the mortgagor's right to redeem would accrue. It has been held both in England and in India that the mortgagee cannot be restrained from exercising his power of sale merely by reason of the mortgagor filing a suit for redemption, unless he pays the mortgage amount to the mortgagee or tenders the same. There is, however, nothing to prevent a mortgagor from seeking to restrain the exercise of the mortgagee's power of sale if the power is exercised in a wrong and improper manner, contrary to the terms of the contract: see <CITATION> (1877) I.L.R. 2 Bom. 252 and <CITATION> (1920) 23 Bom. L.R. 1241. No case was cited before me to show that if the right to redeem had not accrued to the mortgagor he could not bring in a suit for an injunction restraining a wrongful sale, but that his only remedy was either to pay or tender the moneys and allow the property to be sold, and then pursue his remedy in damages if any. In my opinion the plaintiffs could not at the particular stage and under the circumstances of the case have asked for any other relief except an injunction, and they could only succeed if they showed that the proposed sale was wrongful in the sense that it was against the terms of the mortgage. I do not think it can be said that in such a case a suit merely for an injunction is incompetent. Suits in passing off actions and for infringement of trade mark for instance are often filed only for injunction and costs. It is not in dispute that under the terms of the transfer of mortgage the due date was extended to January 22, 1941, with the further option I have mentioned before. Counsel, however, referred to the clause in the mortgage deed which provides that it is agreed that in the event: of any damage happening to the mortgaged property in the manner specified whereby the security was impaired, or in the event of interest for any three months being in arrears and remaining unpaid for three weeks after being due, or if the mortgagors or any of them were adjudged insolvent, or committed a breach of any one of the covenants, provisions, terms and conditions in the mortgage, then notwithstanding anything contained in the mortgage to the contrary.

the whole of the mortgage debt shall at once at the option of the mortgagees become immediately payable as if the due date had then elapsed and in such cases all such rights and remedies shall be available to the mortgagees as would be available to them under the terms of these presents or by law upon default being made in payment of the principal money and interest hereby, secured.

5. It is not in dispute that interest was "in arrears for three months and unpaid. It is also not disputed that the plaintiffs had failed to insure the mortgaged property and to pay the insurance premium. Under the circumstances the due date which was January 22, 1941, was accelerated, and the option to call in his moneys and all the rights of the mortgagee accrued to him. The mortgagee could under the terms of the mortgage deed apply for a receiver of the mortgaged property, or enter into possession, or file a suit for sale, or by exercising the option reserved to him he could proceed to realise his mortgage debt without filing a suit. It has been pointed out by <ORG> in <CITATION> (1932) L.R. 59 I.A. 376, 384, s.c. 34 Bom. L.R. 1600, that a proviso or clause in the mortgage deed of the nature which I have referred to above is "exclusively for the benefit of the mortgagees "and" purports to give them an option either to enforce their security at once, or if the security is ample, to stand by their investment for the full term of the mortgage." In an earlier <ORG> case, <NAME> v. <NAME> 1926) L.R. 53 I.A. 187, the question was one of limitation under Article 132 of the Limitation Act for an action by a mortgagee upon a breach of the clause which gave the mortgagee the power to enforce the mortgage by sale even if the time for repayment had not arrived. It was pointed out by Lord <NAME> at p. 194 that such a default on the part of the mortgagor gave to the mortgagee "a right by appropriate action to make the mortgage moneys) immediately due". As pointed out by Sir <NAME> in his Commentary on the Transfer of Property Act , 2nd edn., at p. 419, such appropriate action may be by a notice of demand as in <NAME> v. <NAME> (1933) I.L.R. 8 Luck. 488, or by the mere filing of a suit as in <CITATION> . 4 (1933) I.L.R. 56 All. 496. In order that the mortgage moneys may become immediately payable on the exercise of the mortgagee's option there must be an action indicating to the mortgagor the exercise of that option, so as to enable the mortgagor to realise his position and save his equity of redemption if possible.

6. What was the appropriate action taken by the defendant as mortgagee? On April 25, 1940, the mortgagee called upon the mortgagors to pay up the arrears of interest failing which he threatened to take proceedings at their risk as to costs. He followed this up with a reminder on July 15 and again on July 24. As no reply was forthcoming, the mortgagee by his attorneys' letter dated August 12, 1940, intimated to the plaintiffs that the defendant had no other alternative but to enter into possession of the mortgaged property and recover the rents and profits, but that he would give the mortgagors one more chance to pay off the arrears failing which he would "exercise his rights under the mortgage herein as indicated above", meaning thereby that he would enter into possession of the mortgaged property. Thereafter the defendant seems to have changed his mind. He advertised the property for sale once in the issue of <ORG> of August 26 and once in the issue of <ORG> of August 30, 1940. The sale was advertised for September 18, 1940. No intimation was given to the plaintiffs. The plaintiffs themselves came to know; of the intended sale on September 2, 1940, as alleged by them in para. 7 of the plaint, and that is admitted by the defendant in para. 9 of his written statement. The question therefore that arises is, is an advertisement for sale by public auction without any intimation to the mortgagor an appropriate action by the mortgagee under the terms of the <ORG> judgment to make the mortgage amount immediately payable at his option? In para. 13 of his written statement the defendant alleges that the plaintiffs were "apprised" by correspondence annexed to the plaint that the defendant was proceeding to exercise his power of sale. But even that was only by way of answer to the plaintiffs' letter of September 17, in which they pointed out inter alia that they had not received even the notice required by Section 69 of the Transfer of Property Act. It is not alleged in the written statement that such advertisement amounted to an intimation of the mortgagee's exercise of his option. In fact the only contention taken up by the defendant in the written statement was that the plaintiffs were not entitled to any intimation at all. In my opinion the mere fact that the defendant became entitled to call in the mortgage moneys immediately1 is not an exercise of the option given to him under the mortgage deed. The mortgage moneys can only become due and payable as soon as the option is exercised upon an intimation on which the mortgagors could come to know their position, for unless the mortgagee calls in the moneys the mortgagor cannot know that the due date has been accelerated. He should also know which of the rights under the mortgage the mortgagee wishes to exercise.

7. Further, or in any event, it is admitted on behalf of the defendant that no notice was given to the mortgagors as required by Section 69(2) (a). Section 69(2) provides that the power of sale without the intervention of the <ORG>" shall not be exercised unless and until (a) notice in writing requiring payment of the principal money has been served on the mortgagor, or on one of several mortgagors, and default has been made in paymenti of the principal money, or of parti thereof, for three months after such service; or (b) some interest under the mortgage amounting at least to Rs. 500 is in arrear and unpaid for three months after becoming due. Both these clauses seem to be based on Section 20 of the English Conveyancing Act of 1881 now corresponding to Section 103 of the Law of Property Act of 1925. This power of sale in the mortgage deed is really an authority given to the mortgagee to defeat the mortgagor's equity of redemption, but it could only be exercised on the fulfilment of either of the two conditions mentioned in Section 69(2) . These conditions are also reproduced in the mortgage deed. In the case of default of payment of interest amounting at least to Rs. 500 no notice is necessary, but in the case 'of default of any payment of the principal notice in writing is necessary unless the mortgagor has waived it or consented to dispense with it. It is necessary because without such notice the exercise of the power of sale would be oppressive. As pointed out by <ORG> in <NAME> v. <NAME> (1879) L.R. 6 I.A. 145, 160, the effect of a power of sale is "to destroy the equity of redemption "and" the estate, if purchased by a stranger, passes into his hands free from all the incumbrances". The object of thei notice, as pointed out by our <ORG> in <NAME> v. <NAME> (1899) 1 Bom. L.R. 273, 275 is also to enable the mortgagor to collect the amount of moneys payable by him if he can, and to pay the same before the time for exercising the power of sale arrives.

8. Defendant's counsel admits that such notice is necessary, but he relies on the clause in the mortgage deed which provides in substance that notwithstanding any irregularity in propriety or want of necessity of a sale by the mortgagee under his power the sale will be valid and effectual and the remedy of the mortgagor shall be in damages only. The clause is a long one, but I have merely set out its substance. Counsel referred to <NAME> v. <NAME> (1864) 10 Jur. N.S. 330. In that case there was a covenant in a mortgage deed not to exercise the power of sale except after three months' notice. The covenant was followed by a proviso that the purchaser should not be affected by the absence of such notice, and that the remedy of the mortgagor should be by an action for damages. Sir <NAME> was of opinion that the construction of the covenant appeared to him to be one of some difficulty, but upon consideration he was of opinion "that the express proviso as to the remedy of the plaintiff by action for damages, takes away the jurisdiction of this <ORG>", the jurisdiction being the jurisdiction to grant an injunction. No reason whatsoever is given for this opinion. It was a case decided in 1864 before even the Conveyancing Act of 1881 came into force. It was followed by <NAME> in <NAME> v. <NAME> (1893) I.L.R. 17 Bom. 711, 717. No reason is given for his judgment. He merely reproduces the clause about the remedy being in damages and then goes on to say that the case of <NAME> v. <NAME> "lays down the rule that in such a case a <ORG> of Equity will not grant an injunction to stop a sale." This case was decided, as pointed out by Sir <NAME>, before the Transfer of Property Act was applied to Bombay. Counsel argued that this <ORG> was bound to follow the case. It is the judgment of a <ORG> of coordinate . ' and I believe counsel was referring to the decision of the Appeal <ORG> in <CITATION> . , where <NAME> pointed out that a decision of a single Judge of this <ORG> was binding upon another Judge on the Original Side, if lit was a decision "which really followed the practice of this <ORG> which had existed for a great number of years". The ruling embodied in <NAME>'s case and followed in <NAME> case has not been mentioned Sri any case in Bombay either before <NAME> case or after it I should like also to point out that the clause in the mortgage deed on which counsel relies begins by saying "without pre-judice to all rights conferred on the mortgagees by Section 69 of the Transfer of Property Act" etc. Now the right conferred by Section 69(2) on the mortgagee is the right to exercise his power of sale only upon fulfilment of one of the two conditions; and as I have stated before, giving the notice required by Section 69(2) (a) is not only necessary but is imperative, and even the period of three months cannot be curtailed by agreement of the parties. I should like to point out the observation made in <CITATION> by Sir <NAME> at p. 385 that it is always1 dangerous to apply English decisions to the construction of an Indian Act . No doubt the two cases which I have referred to before do not bear upon the construction of any provision of the Transfer of Property Act , but I am reluctant to interpret Section 69(2) (a), even if it is followed by the; clause as to the remedy in damages, on the basis of the decision in <NAME> v. <NAME> followed in <NAME> case for which no reason has been assigned.

9. It was lastly argued that it did not appear on the facts of this case that the plaintiffs would ever be able, even if they were willing, to redeem this property, and that they were not even able to pay Rs. 500 within a couple of days as ordered by the <ORG>. It was further contended that any relief in this suit would be futile because the mortgagee can any day sell under Section 69(2) (b) without notice. That may be so, but the facti that the mortgagee can hereafter take the right action cannot in my opinion legalise an action already taken which was not right and proper according to the law. It is true that granting an injunction is an equitable remedy. It is equally true that it is in the discretion of the <ORG>. But the exercise of the discretion must always be based upon judicial principles; in other words, it can only be exercised according to the provisions and requirements of the law. I do not see why sitting as a <ORG> of Equity I should refuse1 the equitable relief by way of injunction merely because the mortgagors were unable to pay in the past and might be unable to pay even in the future. I also do not see why I should refuse to grant the relief because the mortgagors can later come forward and claim damages, if any, by reason of an improper sale. Here there are two conditions which have not been fulfilled. There is no intimation of the exercise of the mortgagee's option, and there is no notice in writing as required by the statute; and the parties wish to stand upon their strict rights regardless of, the consequences of any future action which may be taken by the mortgagee. I cannot say that conditions exist in this case which entitle the mortgagee to exercise his power of sale or which prevent the mortgagors from applying to the <ORG> to restrain the exerrise of that power.

10. There will be a decree for the plaintiffs in terms of prayer (a) of the plaint.

11. Defendant to pay the plaintiffs' costs of the suit and interest on costs at six per cent, per annum.


JUDGMENT <NAME>, J.

1. This appeal arises out of an application made under the Trade Marks Act , 1940, hereinafter called the Act, for registration of a trade mark. The application was made by the respondent and it was opposed by the appellant.

2. The respondent is a manufacturer of biscuits. On November 5, 1949, it made the application for registration of the mark 'Gluvita' in respect of the goods specified in class 30, which mark, it appeared later, it had not used prior to that date. The Registrar ordered the application to be advertised before acceptance on the respondent's agreeing to limit the registration to biscuits only which were one of the classes of goods specified in class 30.

3. The appellant is a corporation organised under the laws of the State of New Jersey in the United States. On August 31, 1942, it had registered the mark 'Glucovita' under the Act in class 30 in respect of "Dextrose (d-Glucose powder mixed with vitamins), a substance used as food or as an ingredient in food; glucose for food." On the same date the appellant had also registered the same trade mark in class 5 in respect of "Infants' and invalids' foods."

4. The appellant opposed the respondent's application contending that it should be refused under ss. 8(a) and 10(1) of the Act to which opposition the respondent duly filed a counter statement. Both sides filed affidavits in support of their respective cases.

5. The Deputy Registrar held that Section 12 as for biscuits included in class 30 were not goods of the same description as glucose powder mixed with vitamins which was in the same class. He further held that the words 'Glucovita' and 'Gluvita' were not visually or phonetically similar and that there was no reasonable likelihood of any deception being caused by or any confusion arising from, the use of the respondent's proposed mark. In regard to s. 8(a) , he held applying the cases of In re : an application by <ORG>. [(1945) 63 R.P.C. 97], that the syllable 'co' which was absent in the respondent's proposed mark sufficiently distinguished the two marks and made it impossible for any one to be deceived or confused. One of the findings made by the Deputy Registrar was that the appellant had acquired a reputation and goodwill for its trade mark 'Glucovita' in respect of glucose powder mixed with vitamins.

6. The appellant then preferred an appeal to <ORG> from the order of the Deputy Registrar. That appeal was heard by <ORG>, exercising the original jurisdiction of that Court. It was not seriously pressed before him on behalf of the appellant that the goods were of the same description and he himself also came to the conclusion that they were not so. He, therefore, held that the registration could not be refused under s. 10(1) of the Act. <ORG>, agreed with the Deputy Registrar's finding that the appellant had acquired a reputation among the public for the mark 'Glucovita' in respect of glucose powder mixed with vitamins. He however disagreed with the view of the Deputy Registrar that the respondent's mark was not likely to cause deception or confusion. He held that the two marks were sufficiently similar so as to be reasonable likely to cause deception and confusion. He, therefore, set aside the order of the Deputy Registrar and held that the respondent's mark could not be registered in view of s. 8(a) .

7. Now the respondent appealed from the judgment of <NAME>, <NAME> This appeal was heard by <NAME>, <NAME>, and <NAME>, <NAME>, of the same <ORG>. The learned Judges of the appellate bench took the view that there was no evidence that the appellant's mark had acquired any reputation among the public but that the evidence produced showed that it had acquired a reputation among the trades people only who were discerning and were not likely to be deceived or confused. According to them, the public not being aware of the reputation of the appellant's trademark were not likely to be deceived or confused by the use by the respondent of its proposed trademark. They also held that the evidence established that there were a series of marks in which the prefix or suffix 'Gluco' or 'Vita' occurred and that it could not therefore be said that the common features 'Gluco' and 'Vita' were only associated with the manufacture of the appellant's goods. On both these grounds they held that the proposed mark of the respondent was not likely to confuse or deceive any one. In the result, they set aside the order of <NAME>, <NAME>, and restored that of the Deputy Registrar. The appellant has now appealed to this Court from the judgment of the appellate Judges of the <ORG>.

8. As we have earlier stated, the appellant had opposed the registration of the respondent's mark under s. 8(a) and also under s. 10(1) . In order that s. 10(1) might apply to the case, the appellant had to establish that its mark had been registered in respect of the same goods or description of goods for which the respondent had made its application for registration. On this question the decisions of the Deputy Registrar and <NAME>, J., are against the appellant. Before the appellate Judges of <ORG> the appellant proceeded on the basis that the goods were not of the same description. Before us also the appellant has adopted the same attitude. That puts s. 10(1) out of the way. We are thus left only with the question whether s. 8(a) prevents the registration of the respondent's mark.

9. In our judgment the view of the appellate Judges of <ORG> that there was no evidence that the appellant's trade mark had acquired a reputation among the public cannot be sustained. In coming to this view, they relied on the affidavits filed by the appellant wherein it was stated that "Glucovita is a well-known mark in the trade" and denoted only the products of the appellant. We think that the learned appellate Judges put too strict a meaning on the words "in the trade" in thinking that they referred only to the tradespeople. In our view, these words may refer also to the public. If they do, then of course, that would be evidence that the appellant's mark had acquired a reputation among the public.

10. But apart from this, there is other evidence on the record to support the conclusion that the appellant's mark had acquired a reputation among the public. The appellant had in its opposition categorically stated that its mark had acquired a reputation among the Indian buying public. There is no clear denial of this in the counter-statement filed by the respondent. There is further ample evidence to show that the appellant's goods under its mark 'Glucovita' were sold in very large quantities in small containers of one pound and four ounces capacities. The small sizes of the containers would indicate that the goods were sold to the public for if those sales had been to tradespeople for industrial purposes, they would have been made in bulk on in much larger containers. It appears that the appellant spent considerable sums for the advertisement of its mark 'Glucovita' in ordinary popular journals and this would indicate that it had a large sale for its goods among the general public. But the most conclusive evidence of the sale of the appellant's goods under the mark 'Glucovita' to the general public comes from the affidavits filed by the respondents itself. From the affidavit of <NAME>, a partner in a firm of <ORG>, filed by the respondent, it appears that "a number of customers come to buy the products 'Gluvita' and the products 'Glucovita'." Similar statements appear in eight other such affidavits. The evidence provided by these affidavits make it perfectly clear that the appellant's mark had acquired a reputation among the general buying public. We think it right in this connection also to refer to the respondent's grounds of appeal against the judgment of <NAME>, J. In these the respondent does not dispute, and in fact it assumes, that the appellant's mark had acquired a reputation among the public. We are, therefore, fully satisfied that the appellant has established that its mark has acquired a reputation among the buying public.

11. In connection with the question of reputation, the learned appellate Judges seem to have fallen into another curious error. They said "A commodity may acquire reputation by its being made by a particular manufacturer and the consumers may require not a particular commodity but the commodity made by a particular manufacturer. It is only in the latter case that it could be said that the commodity manufactured by a particular manufacturer has acquired a reputation among the public. On those affidavits there is not even a suggestion that the public wanted the 'Glucovita' powder mixed with vitamins manufactured by the respondent and not by anybody else." The respondent referred to by the learned Judge is the appellant before us. We are unable to agree with the view expressed by them. It seems clear to us that what is necessary is that the reputation should attach to the trade mark; it should appear that the public associated that trade mark with certain goods. The reputation with which we are concerned in the present case is the reputation of the trade mark and not that of the maker of the goods bearing that trade mark. A trade mark may acquire a reputation in connection with the goods in respect of which it is used though a buyer may not know who the manufacturer of the goods is.

12. In our view, therefore, it would be wrong in this case to say that the appellant's trade mark had not acquired any reputation among the general public and that hence there is no reasonable apprehension of their being confused or deceived by the use of the respondent's proposed mark.

13. The second point on which the learned appellate Judges based themselves in arriving at the conclusion that there was no reasonable apprehension of confusion or deception was, as we have earlier stated, that there were various trade marks with a prefix or suffix 'Gluco' or 'Vita' and that made it impossible to say that the common features 'Glu' and 'Vita' were only associated with the appellant's products. This view was founded on a passage which the learned appellate Judges quoted from <NAME> on Trademarks, 7th Edn. p. 624. That passage may be summarised thus : Where there are a "series" of marks, registered or unregistered, having a common feature or a common syllable, if the marks in the series are owned by different persons, this tends to assist the applicant for mark containing the common feature. This statement of the law in <NAME>'s book is based on In re : an application by <ORG> [64 R.P.C. 76]. It is clear however from that case, as we shall presently show, that before the applicant can seek to derive assistance for the success of his application from the presence of a number of marks having one or more common features which occur in his mark also, he has to prove that those marks had acquired a reputation by user in the market. We will read a portion of the judgment at pp. 82 & 83 in <NAME>, Kollar & Co's case [64 R.P.C. 76] from which what we have stated earlier, appears :

"I am disposed to agree with Mr. <NAME>'s submission that the "series" objections is primarily founded upon user, because the inference which the Registrar is asked to draw is that traders and the public have gained such a knowledge of the common element or characteristic of the "series" that when they meet another mark having the same characteristic they will immediately associate the later mark with the "series" of the marks with which they are already familiar. But I do not think that this statement necessarily implies that the whole issue must be determined solely under the provisions of section 11 , as I will now endeavour to explain.

"When an application for registration is before the Registrar it frequently happens that the search for conflicting marks reveals several marks having some characteristic feature in common with the mark of the application, which marks may stand on the Register in the name of one proprietor only, or in the name of several different proprietors. At this stage, when the matter is one between the applicant and the Registrar, the latter generally has before him no evidence as to whether the registered marks are in actual use or not, but in forming an opinion under Section 12 as to whether or not confusion or deception is likely to arise, he is bound, I think, in the absence of evidence to presume that, prima facie some at least of the registrations have been effected bona fide by persons who at the date of their respective applications were using or proposed in the near future to use their marks. If, therefore, all the marks were owned by one proprietor, the Registrar would presume that the latter was using a "series" of marks and judge the conflict between the applicants' mark and each of the proprietor's marks with this consideration in mind. Of course, if the registrations merely consisted of one and the same word registered separately in respect of several articles to be found in a single class of the Trade Marks Schedules, the Registrar would in general regard all these registrations as but the equivalent of a single registration covering all the items, for they would not constitute a "series" as now under discussion. On the other hand, if the registered marks found were owned by several different proprietors, this would be a circumstance which might considerably assist the applicant, who would be in a position to submit that the common characteristic was one well recognised in marks in use in the particular trade. In short, when the Registrar comes to compare the applicant's mark with the registered marks, using the principles laid down in the "Pionotist" case the presence of marks on the Register other than the one with which the comparison is being made is regarded an one of the surrounding circumstances which he is required to take into account.

"But when the same question comes before the Registrar in opposition proceedings, it appears to me that he is no longer in a position to make any presumption as regards the surrounding circumstances, but that before he can draw the suggested inference based upon the user of other marks either in the applicant's or the opponent's favour, any such user must be established by evidence (see, e.g. Harrods Ld.'Application, 52 R.P.C., p. 70, 1. 39-p. 71, 1. 15, where the Registrar refused to draw the necessary inference in favour of the applicants in the proceedings)."

14. We have no reason to think that <NAME> in stating the law on the subject intended to depart from the principle stated in the passage that we have just now read, from <NAME>, Kollar & Co's case.

15. We may also refer to In re : <ORG>' application [52 R.P.C. 65], mentioned in the quotation from <ORG> case [64 R.P.C. 76], set out in the preceding paragraph. It was there said at p. 70,

16. Now it is a well recognised principle, that has to be taken into account in considering the possibility of confusion arising between any two trademarks, that, where those two marks contain a common element which is also contained in a number of other marks in use in the same market such a common occurrence in the market tends to cause purchasers to pay more attention to the other features of the respective marks and to distinguish between them by those features. This principle clearly requires that the marks comprising the common element shall be in fairly extensive use and, as I have mentioned, in use in the market in which the marks under consideration are being or will be used.

17. The series of marks containing the common element or elements therefore only assist the applicant when those marks are in extensive use in the market. The onus of proving such user is of course on the applicant, who wants to rely on those marks. Now in the present case the applicant, the respondent before us, led no evidence as to the user of marks with the common element. What had happened was that Deputy Registrar looked into his register and found there a large number of marks which had either '<ORG>' or 'Vita' as prefix or suffix in it. Now of course the presence of a mark in the register does not prove its user all. It is possible that the mark may have been registered but not used. It is not permissible to draw any inference as to their user from the presence of the marks on the register. If any authority on this question is considered necessary, reference may be made to <NAME> p. 507 and <ORG> v. <ORG> [39 R.P.C. 285 p. 289]. It also appears that the appellant itself stated in one of the affidavits used on its behalf that there were biscuits in the market bearing the marks '<ORG>se Biscuits', '<ORG> biscuits' and '<ORG>a Lactine biscuits'. But these marks do not help the respondent in the present case. They are ordinary dictionary words in which no one has any right. They are really not marks with a common element or elements. We, therefore, think that the learned appellate Judges were in error in deciding in favour of the respondent basing themselves on the series marks, having '<ORG>' or 'Vita' as a prefix or a suffix.

18. We have already said that in our view the mark 'Glucovita' has acquired a reputation among the general buying public. The first question that then arises is whether the marks 'Glucovita' and' Gluvita' are so similar as to be likely to cause confusion to the buying public or deceive them. On this matter, we have not the advantage of the view of the learned appellate Judges of <ORG>. They did not express any view on this aspect of the question at all. We are however inclined to think that their answer to the question would have been in the affirmative. However that may be, the Deputy Registrar felt that the words were not so similar as to be likely to give rise to confusion or to cause deception. He felt that the syllable 'co' in the appellant's mark was an emphatic characteristic and was not likely to be slurred over. He apparently felt that this syllable would prevent any confusion arising between the two marks or any person being deceived by the use of them both. He thought that the test down in what is called the "<NAME>" case (In re : an application by <ORG> [63 R.P.C. 97], should be applied and that the emphatic characteristic of the second syllable in the mark 'Glucovita' should decide that there was no likelihood of confusion arising. <NAME>, J., thought that the Deputy Registrar was wrong.

19. We think that the view taken by <NAME>, J., is right. It is well known that the question whether the two marks are likely to give rise to confusion or not is a question of first impression. It is for the court to decide that question. English cases proceeding on the English way of pronouncing an English word by Englishmen, which it may be stated is not always the same, may not be of much assistance in our country in deciding questions of phonetic similarity. It cannot be overlooked that the word is an English word which to the mass of the Indian people is a foreign word. It is well recognised that in deciding a question of similarity between two marks, the marks have to be considered as a whole. So considered, we are inclined to agree with <NAME>, J., that the marks with which this case is concerned are similar. Apart from the syllable 'co' in the appellant's mark, the two marks are identical. That syllable is not in our opinion such as would enable the buyers in our country to distinguish the one mark from the other.

20. We also agree with <NAME>, J., that the idea of the two marks is the same. The marks convey the ideas of glucose and life giving properties of vitamins. The Aquamatic case (<NAME> v. <NAME>'s Ld.) [1958 R.P.C. 387], is a recent case where the test of the commonness of the idea between two marks was applied in deciding the question of similarity between them. Again, in deciding the question of similarity between the two marks we have to approach it from the point of view of a man of average intelligence and of imperfect recollection. To such a man the overall structural and phonetic similarity and the similarity of the idea in the two marks is reasonable likely to cause a confusion between them.

21. It was then said that the goods were not of the same description and that therefore in spite of the similarity of the two marks there would be no risk of confusion or deception. We are unable to accept this contention. It is true that we have to proceed on the basis that the goods are not of the same description for the purposes of s. 10(1) of the Act. But there is evidence that glucose is used in the manufacture of biscuits. That would establish a trade connection between the two commodities, namely, glucose manufactured by the appellant and the biscuits produced by the respondent. An average purchaser would therefore be likely to think that the respondent's 'Gluvita biscuits' were made with the appellant's 'Glucovita' glucose. This was the kind of trade connection between different goods which in the "Black Magic" case (In re : an application by <NAME> [58 R.P.C. 91]), was taken into consideration in arriving at the conclusion that there was likelihood of confusion or deception. The goods in this case were chocolates and laxatives and it was proved that laxatives were often made with chocolate coatings. We may also refer to the "Panda" case (In re : an application by <NAME> [63 R.P.C. 59]). The goods there concerned were shoes and shoe polishes. It was observed that shoe polishes being used for shoes, there was trade connection between them and that this might lead to confusion or deception though the goods were different. The application for registration was however refused under that section of the English Act which corresponds to s. 8 of our Act on the ground that the opponents, the manufacturers of shoes, had not established a reputation for their trademark among the public.

22. It is true that in both the above-mentioned cases the two competing trade marks were absolutely identical which is not the case here. But that in our opinion makes no difference. The absolute indentity of the two competing marks or their close resemblance is only one of the tests for determing the question of likelihood of deception or confusion. Trade connection between different goods is another such test. Ex hypothesi, this latter test applies only when the goods are different. These tests are independent tests. There is no reason why the test of trade connection between different goods should not apply where the competing marks closely resemble each other just as much as it applies, as held in the "Black Magic" and "Panda" cases, where the competing marks were identical. Whether by applying these tests in a particular case the conclusion that there is likelihood of deception or confusion should be arrived at would depend on all the facts of the case.

23. It is then said that biscuits containing glucose are manufactured with liquid glucose whereas the appellant's mark only concerns powder glucose. We will assume that only liquid glucose is used in the manufacture of biscuits with glucose. But there is nothing to show that an average buyer knows with what kind of glucose, biscuits containing glucose are or can be made. That there is trade connection between glucose and biscuits and a likelihood of confusion or deception arising therefrom would appear from the fact stated by the appellant that it received from a tradesman an enquiry for biscuits manufactured by it under its mark 'Glucovita'. The tradesman making the enquiry apparently thought that the manufacturer of 'Glucovita' glucose was likely to manufacture biscuits with glucose; he did not worry whether biscuits were made with powder or liquid glucose. Then again it is stated in one of the affidavits filed by the appellant that the respondent's director told the appellant's manager that the respondent had adopted the name 'Gluvita' to indicate that in the manufacture of its biscuits glucose was used. Those statements of behalf of the appellant are not denied by the respondent. So, a trade connection between glucose and biscuits would appear to be established. We are therefore of opinion that the commodities concerned in the present case are so connected as to make confusion or deception likely in view of the similarity of the two trade marks. We think that the decision of <ORG>, was right.

24. In the result, we set aside the order of the learned appellate Judges of <ORG> and restore that of <NAME>, J. The appeal is accordingly allowed. The appellant will get the costs before the appellate Judges in <ORG> and in this <ORG>.

25. Appeal allowed.


PETITIONER: <NAME> Vs. RESPONDENT: THE COMMISSIONER OF INCOME-TAX, BIHAR & ORISSA DATE OF JUDGMENT: 01/10/1958 BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. AIYYAR, T.L. VENKATARAMA SARKAR, A.K. CITATION: 1959 AIR 257 1959 SCR Supl. (1) 10 CITATOR INFO : E 1959 SC1303 (11,12) D 1960 SC1232 (7,47) R 1964 SC 766 (9) F 1967 SC 230 (5,13) R 1968 SC 565 (9,11,32) D 1968 SC 843 (10) R 1970 SC 300 (4) RF 1972 SC 29 (4) F 1976 SC 203 (10,11,12) D 1976 SC1681 (5) RF 1977 SC2129 (9) R 1979 SC1960 (6,14) ACT: Income Tax-Re-assessment -Escaped income -Assessment order based on statement of law subsequently found to be erroneous Escaped Whether assessment can be reopened-" Information Escaped-income", meaning of- Indian Income-tax Act , 1922 (XI Of 1922), as amended by Act 48 of 1948, s. 34(1)(b) . HEADNOTE: In respect of the assessment of the appellant to income-tax the Income-tax Officer excluded the amount of interest on arrears of rent received by him, in view of the decision of <ORG> in <CITATION> ,  14 1. T. R. 673, that this amount was not liable to be taxed, though an appeal against the said decision to <ORG> at the instance of <ORG> was then pending. Subsequently on July 6, 1948, <ORG> allowed the appeal and held that interest on arrears of rent payable in respect of agricultural land was not agricultural income as it was neither rent nor revenue derived from land. As a result of this decision the Income-tax Officer took proceedings under s. 34 Of the Indian Income-tax Act, 1922, as amended, and revised the assessment order by adding the aforesaid amount, on the footing that the subsequent decision of <ORG> was information within the meaning of S. 34(1)(b) of the Act and that the Income-tax Officer had reason to believe that a part Of the assessee's income, had escaped assessment. It was contended for the appellant that s. 34(1)(b) was not applicable to the case because (1) the information referred to in the section means information as to facts and cannot include the decision of <ORG> on a point of law, 11 and (2) where income has been duly returned for assessment and an assessment order has been passed by the Income-tax Officer, it cannot be said that any income has escaped assessment within s. 34(1)(b) . Held, (1) that the word " information " in s. 34(1)(b) of the Act includes information as to the true and correct state of the law and so would cover information as to relevant judicial decisions; and, (2) that the expression "has escaped assessment" in to cases where no return has been submitted by the assessee. The section is applicable not only where income has not been assessed owing to inadvertence or oversight or owing to the fact that no return has been submitted, but also where are turn has been submitted, but the Income-tax Officer erroneously fails to tax a part of assessable income. <CITATION> , (1933) L.R. 61 I. A. 10 and Messrs. <CITATION> ,  2S.C.R. 290, distinguished. <CITATION> ,  24 I.T.R. 70, <CITATION> ,  12 I.T.R. 8 and <CITATION> , (1926) I.L.R. 49 Mad. 22, approved. , <CITATION> ,  17 I.T.R. 22o, disapproved. JUDGMENT:

CIVIL APPELLATE, JURISDICTION: Civil Appeal No. 297 of 1955. Appeal from the judgment and decree dated April 7, 1954, of <ORG> in Misc. Judicial Case No. 327 of 1951.

<NAME> and <NAME>, for the appellant.

<NAME>, <NAME> and <NAME>, for the respondent.

1958. October 1. The Judgment of the Court was delivered by <NAME> is an appeal with the, certificate issued by <ORG> at Patna under s. 66A(2) of the Income-tax Act (hereinafter called the Act) and it raises a, short question of the construction of s. 34(1)(b) of the Act. This question arises in this way. Proceedings. were. taken by the Income-tax Officer, <ORG>, Patna, against Maharaja <NAME>, the father of the appellant, to levy income-tax for the year 1945-46. The total income assessed to income-tax by the said order was Rs. 1,60,602. This amount included the sum of Rs. 93,604 received by the assessee on account of interest on arrears of rent due to him after deduction of collection charges. It was urged before the Income-tax Officer by the assessee that this amount was not liable to be taxed in view of the decision of <ORG> in <CITATION> (1). The Income-tax Officer, however, held that, since the department had obtained leave to appeal to <ORG> against the said decision, the matter was sub judice and so be would not be justified in accepting the assessee's contention. In the result, he included the said amount in the total income for the purposes of assessment, but ordered that the realisation of the tax on the &aid amount should be stayed till the decision of <ORG> or March 31, 1947, whichever was earlier. This order was passed under s. 23(3) of the Act on December 31, 1945.

Against this order the assessee preferred an appeal before the Appellate Assistant Commissioner of Income-tax, Patna. On May 8, 1946, the appellate authority held that <ORG> was bound to follow the decision in the case of <NAME> (supra) (1) and so, he set aside the order under appeal in regard to the amount of Rs. 93,604 and directed <ORG> to make fresh assessment. He also observed that it was not clear as to what portion of the said amount was interest on arrears of agricultural rents and what portion related to interest on arrears of non-agricultural rents. The Income Tax Officer was accordingly directed to determine the latter amount and to levy tax on it.

Pursuant to this appellate order the Income-tax Officer made a fresh assessment under ss. 23(3) and 31 of the Act on August 20, 1946. By this order the (1) [1946) 14 I.T.R. 673.

total amount of income liable to tax was determined after deducting the whole of the amount of Rs. 93,604 from it. Some other minor reductions were also allowed in compliance with the appellate order. The department did not challenge either the appellate order or the subsequent order passed by the Income-tax Officer in pursuance of the said appellate order.

Subsequently, on July 6, 1948, the appeal preferred by the department to <ORG> against the decision of <ORG> in <NAME> case (1) was allowed and it was held that interest on arrears of rent payable in respect of agricultural land is not agricultural income for it is neither rent nor revenue derived from land. As a result of this decision, the Income-tax Officer issued a notice to the assessee under s. 34 of the Act on September 25, 1948. This notice called upon the assessee to file a fresh return as the Income-tax Officer had reason to believe that a part of the assessee's income assessable to income- tax for the year ending March 31, 1946, had escaped assessment. It appears that this notice was found to be defective, and so under the provisions of s. 34 , as amended, a fresh notice was issued by the officer to the assessee on March 18, 1949. The proceedings thus taken by the officer under s. 34 ultimately led to a revised assessment order passed under s. 23(3) and s. 34 of the Act and the amount of Rs. 93,604 was added to the assessment amount as interest on arrears of rent. This revised assessment order was passed on April 30, 1949.

The assessee appealed against this order but the appellate authority dismissed the assessee's appeal and confirmed the said order on July 26, 1949. He held that the subsequent decision of <ORG> in the case of <NAME> (supra) (1) was information within the meaning of cls. (a) and (b) of s. 34(1) and that the Income-tax Officer bad reason to believe that a part of the assessee's income had escaped assessment. The assessee then moved <ORG>; but on August 21, (1)  16 I.T.R. 325.

1950, the tribunal confirmed the order passed by the appellate authority and dismissed the assessee's appeal. It was held that the provisions of a. 34 as amended in 1948 applied to the case and that the decision of <ORG> brought it within the purview of sub-s. (1)(b) of s. 34.

Meanwhile the assessee died and the appellant succeeded to the estate of his deceased father. He then filed an application under s. 66(1) of the Act requiring the tribunal to refer the question of law raised in the case to <ORG> for its opinion. The tribunal rejected this application on February 27, 1951. Thereupon the appellant moved <ORG> under s. 66(2) of the Act; his application was allowed and the tribunal was directed by <ORG> on December 15, 1951, to state the case and refer the question of law for its opinion. In compliance with the requisition of <ORG> the tribunal by its order passed on July 23, 1952, submitted a statement of the case and referred to <ORG> for its opinion the question of law raised by the appellant. The question thus raised is: " Whether in the circumstances of the case the assessment order under s. 34 of the Act of the interest on arrears of rent is legal ?" On April 7, 1954, this reference was heard by <NAME> and <NAME> of <ORG> and the question was answered by them in favour of the department. The appellant then applied for and obtained a certificate from <ORG> on September 13, 1954. <ORG> has certified under s. 66A , sub-s. (2), of the Act that the case raises a question of law of a substantial kind and is otherwise a fit case for appeal to this court. That is how the present appeal has come before us; and the question which it raises for our decision is about the true construction of s. 34(1)(b) of the Act.

Section 34 of the Act has been amended in 1939 and in 1948. It is conceded by Mr. <NAME>, for the appellant, that the present case is governed by the section as it was amended in 1948. This amended s. 34 , sub-s. (1), deals with cases of income escaping assessment in two clauses. Clause

(a)- covers cases where income has escaped assessment by reason of the omission or failure on the part of the assessee to make a return of his income under s. 22 . We are not concerned with this clause. Clause (b) of s. 34(1) provides inter alia that " notwithstanding that there has been no omission or failure as mentioned in cl. (a) on the part of the assessee, if the Income-tax Officer has, in consequence of information in his possession, reason to believe that income, profits or gains chargeable to income-tax have escaped assessment for any year, or have been under-assessed, or assessed at too low a rate, or have been made the subject of excessive relief under the Act, or that excessive loss or depreciation allowance have been computed, he may, at any time within four years of the end of that year serve on the assessee a notice containing all or any of the requirements, which may be included in a notice under sub-s. (2) of s. 22 , and may proceed to assess or reassess such income, profits or gains or recompute the loss or depreciation allowance, and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section ". It is clear that two conditions must be satisfied before the Income-tax Officer can act under s. 34(1)(b) . He must have information in his possession, which, in the context, means that the relevant information must have come into his possession subsequent to the making of the assessment order in question and this information must lead to his belief that income chargeable to income-tax has escaped assessment for any year, or that it has been under-assessed or assessed at too low a rate or has been made the subject of excessive relief under the Act. Two questions are raised by Mr. <NAME> under this sub-section in the present appeal. He contends that the relevant information means information as to facts and cannot include the decision of <ORG> on a point of law; and he argues that, where income has been duly returned for assessment and an assessment order has been passed by the Income-tax Officer, it cannot be said that any income has escaped assessment within s. 34(1)(b) . Thus the appellant's case is that both the conditions required by s. 34(1)(b)  16 have not been satisfied and so the order of revised assessment passed against the appellant is illegal. It is not disputed-that, according to its strict literal' meaning, the word " information " may include knowledge even about a state of tile law or a decision on a point of law. The argument, however, is that the context requires that the word " information " should receive a narrower construction limiting it to facts or factual material as distinguished from information as to the true state of the law. In support of this argument Mr. <NAME> referred to the marginal notes of ss. 19A and 20A as well as the province, s of s. 22(3) and s. 28 and urged that the information contemplated by these provisions is information as to facts or parti- culars and has no reference to the state of law or to any question of law; and so the said word in s. 34(1)(b) should be construed to mean only factual information. We are not impressed by this arguments If the word " information" used in any other provision of the Act denotes information as to facts or particulars, that would not necessarily determine the meaning of the said word in s. 34(1)(b) . The denotation of the said word would naturally depend on the context of the particular provisions in which it is used. It is then contended that ss. 33B and 35 confer ample powers on the specified authorities to revise Income-tax Officer's orders and to rectify mistakes respectively and so it would be legitimate to construe the word "information " in s. 34(1)(b) strictly and to confine it to information in regard to facts or particulars. This argument also is not valid. If the word "information " in its plain grammatical meaning includes information as to facts as well as information as to the state of the law, it would be unreasonable to limit it to information as to the facts on the extraneous consideration that some cases of assessment which need to be revised or rectified on the ground of mistake of law may conceivably be covered by ss. 33B and 35 . Besides, the application of these two sections is subject to the limi- tations prescribed by them; and so the fact that the said sections confer powers for revision or rectification would not be relevant and material in construing s. 34(1)(b). The explanation to s. 34 also does not assist the appellant. It is true that under the explanation production before the Income-tax Officer of account books or other evidence from which material facts could with due diligence have been discovered by the Income-tax Officer would not necessarily amount to disclosures within the meaning of the said section; but we do not see how this can have any bearing oil the construction of cl. (b) in s. 34(1) . On the other hand, one of the cases specifically mentioned in s. 34(1)(b) necessarily postulates that the word "information" must have reference to information as to law. Where, in consequence of information in his possession, the Income-tax Officer has reason to believe that income has been assessed at too low a rate, he is empowered to revise the assessment; and there can be no doubt that the belief of the Income-tax Officer that any given income has been assessed at too low a rate may in many cases be due to information about the true legal position in the matter of the relevant rates. If the word " information " in reference to this class of cases must necessarily include information as to law, it is impossible to accept the argument that, in regard to the other cases falling under the same provision, the same word should have a narrower and a more limited meaning. We would accordingly hold that the word " information " in s. 34(1)(b) includes information as to the true and correct state of the law and so would cover information as to relevant judicial decisions. If that be the true position, the argument that the Income-tax Officer was not justified in treating <ORG> decision in question as information within s. 34(1)(b) cannot be accepted.

in regard to the other condition prescribed by s. 34(1)(b) . When can income be said to have escaped assessment? Mr. <NAME> argued that the word "assessment " does not mean only the order of assessment, but it includes all steps taken for the purpose of levying the tax and during the process of taxation. That no doubt is true; but the wide denotation of the word  " assessment" does not really assist the appellant; it only shows that along with the order of assessment which is an important act in the process of taxation, other acts and steps adopted in the course of taxation are also included in the word ; but it is with this " most critical act in the process of taxation " with which we are concerned in the present appeal. Then it is urged that the word "escaped " according to <ORG> means "to elude (observations, search, etc.); to elude the notice of a person " ; and the contention is that it is only where income has not been returned for assessment that it can be reasonably said that income has escaped assessment. The dictionary meaning of the word does not support Mr. <NAME>'s contention. According to the same dictionary the word " escape " also means " to get clear away from (pursuit or pursuer); to succeed in avoiding (anything painful or unwelcome)"; so that judging by +,he dictionary meaning alone it would be difficult to (-confine the meaning of the word " escape " only to cases where no return has been submitted by the assessee. Even if the assessee has submitted a return of his income, cases may well occur where the whole of the income has not been assessed and such part of the income as has not been assessed can well be regarded as having escaped assessment. In the present case, interest on arrears of rent received by the assessee from his agricultural lands were brought to the notice of the Income- tax Officer; the question as to whether the said amount can be assessed in law was considered and it was ultimately held that the relevant decision of <ORG> which was binding on the department justified the assessee's claim that the said income was not liable to be assessed to tax. There is no doubt that a part of the assessee's income had not been assessed and, -in that sense, it has clearly escaped assessment. Can it be said that, because the matter was considered and decided on the merits in the light of the binding authority of the decision of <ORG>, no income has escaped assessment when the said <ORG> decision has been subsequently reversed by <ORG> ? We see no justification for holding that cases of income escaping assessment must always be cases where income has not been assessed owing to inadvertence or oversight or owing to the fact that no return has been submitted. In our opinion, even in a case where a return has been submitted, if the Income-tax Officer erroneously fails to tax a part of assessable income, it is a case where the said part of the income has escaped assessment. The appellant's attempt to put a very narrow and artificial limitation on the meaning of the word escape " in s. 34(1)(b) cannot therefore succeed.

Mr. <NAME>, however, argues that the narrow construction of the expression "has escaped assessment " for which he contends has been approved by <ORG> in <NAME> v. Income-tax Commissioner (1). He relies more particularly on the observation made in the judgment in this case that "the fact that s. 34 requires a notice to be served calling for a return of income which has escaped assessment ,strongly suggests that income which has already been duly returned for assessment cannot be said to have escaped 'assessment within the statutory meaning". In order to appreciate the effect of this observation it would be necessary to examine the material facts in the case and the specific points raised for the decision of <ORG>. It appears that, in 1930 the Income-tax Officer had made an assessment order on <ORG>, which was an unregistered firm, assessing them' to income-tax and super- tax for the year 192728 under the Act. The individual partners of <ORG>, who were the appellants before the <ORG>, contended that it was not competent to the officer to make the impugned assessment on the firm after the expiry on March 31, 1928, of the year in respect of which the assessment was made. The Commissioner of Income-tax met this plea by referring to the other relevant facts which explained the delay in making the assessment order. Towards the end of 1926-27, the partners of the registered firm of <ORG>, had purchased the business and assets of <ORG> This transaction was effected not on behalf of the firm (1) (1933) 61 I.A. IO, 16.

of <ORG>, but by the partners of the firm as individuals. In April 1927, the Income-tax Officer of District I issued a notice to <ORG>, under s. 22(2) calling for a return of their total income for the year ending March 31, 1927, with a view to assessing them for the year 1927-28. A similar notice was issued by the Income-tax Officer of District 11. When these notices were issued both the officers did not know that the business of <ORG>, had been bought by the partners of <ORG> Subsequently this transaction was brought to the knowledge of the income- tax authorities whereupon <ORG>'s file was transferred by the officer dealing with District 11, and in February 1928, an assessment order was made on <ORG>, in respect of the combined incomes returned by <ORG>, and <ORG>, on the footing that the business of <ORG>, had become a branch of <ORG> <ORG>, appealed against this assessment and their appeal was allowed by <ORG> in May 1930. It was held that an income of a registered firm cannot, for the purpose of the Act., be aggregated with the income of an unregistered firm but that the income of each must be separately assessed irrespective of the fact that the persons interested in the profits of both concerns are the same. In consequence of this decision, the assessment made on <ORG>, was amended by the elimination therefrom of the income returned by <ORG>, and in November 1930, an assessment was made on <ORG>, on their income as returned by them in Janu- ary 1928. It was this assessment which was the subject- matter of the appeal before <ORG>. It would thus be noticed that the principal question which the appellants raised before <ORG> was: Whether the assessment made under s. 23(1) on the appellants in November 1930 for the year 1927-28 was a legal assessment ? The argument was that, on a true construction of the Income-tax Act , it was obligatory on the Income-tax Officer to complete the assessment proceedings within the year of assessment, and in the event of such assessment not being so completed the only remedy open to the income-tax authorities was to proceed under s. 34 . This argument was repelled by <ORG>. Their Lordships held that neither s. 23 nor any other express provision of the Act limited the time within which an assessment must be made. They then examined the other argument urged by the appellants that s. 34 implied a prohibition against the making of an assessment after the expiry of the tax year. In dealing with this argument, s. 34 was construed and it was observed that the argument sought to put upon the word "assessment " too narrow a meaning, and upon the word " escaped " too wide a meaning. It was in this connection that their Lordships approved of the observation made by <NAME> in Re: <NAME> (1) that I....... income has not escaped assessment if there are pending at the time proceedings for the assessment of the assessee's income which have not yet terminated in a final assessment thereof ". In other words, the conclusion of <ORG> was that so long as assessment proceedings are pending against an assessee and no final order has been passed thereon, it would be premature to suggest that any income of the assessee has escaped assessment. It is only after the final order levying the tax has been passed by the Income-tax Officer that it would be possible to predicate that any part of the assessee's income has escaped assessment. In the result their Lordships held that " since proceedings pursuant to the notice issued against the appellants under s. 22(2) had been pending and no order had been passed against the appellants in the said proceedings, it would not be possible to accept their argument that the Income-tax Officer should have taken action against them in respect of the income for the relevant year under s. 34 of the Act ". If this decision is considered in the light of the relevant facts and the nature of the argument raised before <ORG> by the appellants, it would be difficult to accept the contention that, according to <ORG>, s. 34 would be inapplicable wherever notice under s. 22(2) has been issued against an assessee, a return has been submitted by him and (1) (1030) I.L.R. 58 Cal. 909, 912.

a final order has been passed by the Income-tax Officer in the said assessment proceedings. To say that, so long as the assessment proceedings are pending, it is impossible to assume that any income has escaped assessment is very much different from saying that income cannot be said to have escaped assessment wherever assessment proceedings have been taken and a final order has been passed on them. We must, therefore, hold that this decision does not support Mr. <NAME>'s contention about the inapplicability of s. 34 in the present case.

In this connection it may be relevant to refer to the decision of <ORG> in Be: Lachhiram Basantlal (supra) (1) because, as we have already pointed out, the statement of the law made by <NAME> in regard to the effect of s. 34 of the Act in this case has been expressly approved by <ORG> in the case of <NAME> (supra) (2). While dealing with the assessees' argument that the order of assessment was invalid Since it had been passed more than one year after the expiry of the relevant financial year and that the Income-tax Officer might have acted under s. 34 , <NAME> stated that income cannot be said to have escaped assessment except in the case where an assessment has been made which does not include the income. It is true that this observation is obiter but it is fully consistent with the subsequent statement of the law made by the learned Chief Justice which has received the approval of <ORG>. Mr. <NAME> has also relied on the decision of this <ORG> in Messrs. <CITATION> - tax, Bihar & Orissa (1) in support of his construction of s.

34. In <NAME>'s case (supra) (3) the assessee had been assessed to income-tax which was reduced on appeal and was set aside by <ORG> on the ground that the Indian Finance Act of 1939 was not in force during the assessment year in Chota Nagpur. On a reference the decision of the tribunal was upheld by the High (1) (1930) I.L.R. 58 Cal. 909, 912. (2) (1933) 61 I.A.10,

16. (3) [1955] 2 S.C.R. 290.

<ORG>. Subsequently the Governor of Bihar promulgated the Bihar Regulation IV of 1942 and thereby brought into force the Indian Finance Act of 1939 in Chota Nagpur retrospectively as from March 30, 1939. This ordinance was assented to by the Governor-General. On February 8,1944, the Income-tax Officer passed an order in pursuance of which proceedings were taken against the assessee under the provisions of s. 34 and they resulted in the assessment of the assessee to income-tax. The contention which was raised by the assessee in his appeal to this <ORG> was that the notice issued against him under s. 34 was invalid. This <ORG> held that the income, profits or gains sought to be assessed were chargeable to income-tax and that it was a case of chargeable income escaping assessment within the meaning of s. 34 and was not a case of mere non-assessment of income-tax. So far as the decision is concerned, it is in substance inconsistent with the argument raised IVY Mr. <NAME>. He, however, relies on the observations made by <NAME> that " the contention of the learned counsel for the appellant that the escapement from assessment is not to be equated to non-assessment simpliciter is not without force " and he points out that the reason given by the learned judge in support of the final decision was that though earlier assessment proceedings had been taken they had failed to result in a valid assessment owing to some lacuna other than that attributable to the assessing authorities notwithstanding the chargeability of income to the tax. Mr. <NAME> says that it is only in cases where income can be shown to have escaped assessment owing to some lacuna other than that attributable to the assessing authorities that s. 34 can be invoked. We do not think that a fair reading of the judgment can lead to this conclusion. The observations on which reliance is placed by Mr. <NAME> have naturally been made in reference to the facts with which the <ORG> was dealing and they must obviously be read in the context of those facts. It would be unreasonable to suggest that these observations were intended to confine the application of s. 34 only to cases where income escapes assessment owing to reasons other than those attributable to the assessing authorities. Indeed <NAME> has taken the precaution of adding that it was unnecessary to lay down what exactly constitutes escapement from assessment and that it would be sufficient to place their decision on the narrow ground to which we have just, referred. We are satisfied that this decision is of no assistance to the appellant's case.

It appears that the construction of s. 34 has led to a divergence of judicial opinion in the <ORG> of this country, and so it would be necessary to refer briefly to the decisions to which our attention was invited in this appeal. <CITATION> (1), the majority decision of <ORG> of <ORG> held that s. 34 of the Act, as it stood then, was not confined to cases where income had not been returned at all. It applied also to cases where an item of income is included in the return made by the assessee but is left unassessed by the Income-tax Officer, or, if assessed in the first in- stance, the assessment is cancelled by any appellate or revisional authority. <NAME> who delivered the majority judgment has expressed his agreement with the opinion of Coutts Trotter C. J. in <CITATION> (2) that the words " escaped assessment " apply even " to cases where the Income- tax Officer has deliberately adopted an erroneous construction of the Act as much as to a case where an officer has not considered the matter at all, but simply omitted the assessable property from his view and from his assessment ".

The next case which has been cited before us is the decision of <ORG> in <CITATION> (3). In this case <ORG> construed the word " definite information " in s. 34 and held that in order to take action under the said section, there must be some information as to a fact which leads the Income-tax Officer to discover that income (1)  3 I.T.R. 438. (2) (1926) 49 Mad. 22, 28. (3)  12 I.T.R. B.

has escaped assessment or has been under-assessed. The learned Chief Justice, however, added that the fact may be as to the state of the law, for instance, that a case has been overruled or that a statute has been passed which has not been brought to the attention of the Income-tax Officer. <NAME> who delivered a concurring judgment was inclined, to hold that the word " information " in the section must be confined only to information as to facts or particulars and cannot include information as to law. In his opinion, " a mistake of law or misunderstanding of the provisions of the law is not covered by the language of the section as amended in 1939 ". It may be pointed out that in coming to this conclusion the learned judge appears to have relied on the observations of <NAME> in <ORG> v. <NAME> (1) that "the word I discover' in s. 125 of the English Act does not include a mere change of opinion on the same facts and figures upon the same question of account- ancy, being a question of opinion ". Incidentally, we may observe that this statement of the law by Mr. Justice <NAME> appears to have been overruled by <ORG> in <CITATION> (2). Soon after the decision of <ORG> was reported the same question was raised before <ORG> in <CITATION> - tax, Madras (3). <NAME> who delivered the judgment of the court agreed with the construction which had been put on the expression "definite information " by <ORG> on the ground that "it is very desirable to avoid conflict on such a question ". He, however, added that in view of the opening words of the amended section as it was amended in 1939, the word " discovers " means something more than 'has reason to believe' or ' satisfies himself' and that consequently it would not be right to regard the English decisions on the meaning of the word " discovers " in s. 125 of (1)  I. K. B. 271. (2)  117 I.T.R. Supplement

30. (3) [1945] 13 I.T.R. 194, 197.

the English Act as being in point. He also made it clear that in following the Bombay, decision they did not imply that the definite information must relate to a pure question of fact because it was impossible to lay down a rule to cover all cases in which this section can be invoked. In <ORG>, conflicting views have been expressed on this point. <CITATION> . of Assam (1), <NAME> and <NAME> had to deal with the construction of s. 30 of the Assam Agricultural Income-tax Act (Assam IX of 1939) which corresponds to s. 34 of the Act. They held that where a certain income has been included in his return by the assessee but was not assessed on the ground that it was not assessable, it cannot be treated as income which has escaped assessment and reassessed under s. 30 of the Assam Agricultural Income-tax Act. In his judgment the learned Chief Justice has mentioned that the earlier decisions of <ORG> were no doubt against the contentions of the appellant but he took the view that the question was really concluded by the decision of <ORG> in <NAME> case (supra) (2). The <ORG> decision was read by the learned Chief Justice as supporting the view that s. 34 would be inapplicable to cases where income has been returned, assessment proceedings have been taken and a final order of assessment has been passed by the Income-tax Officer against the assessee. We have already pointed out that the decision of <ORG> does not support this view. <CITATION> of 1. T., West Bengal(1), <NAME> and <NAME> have taken a contrary view. They have held that information as to the true state or meaning of the law derived freshly from an external source of authoritative character is definite information within the meaning of s. 34 .

It appears that, in construing the scope and effect of the provisions of s. 34 , <ORG> have had (1)  17 I.T.R. 220. (2) (1933) 61 1,A. 10, 16.

(3) [1933] 24 I.T.R. 70.

occasion to decide whether it would be open to the Income- tax Officer to take action under s. 34 on the ground that he thinks that his original decision in making the order of assessment was wrong without any fresh information from an external source or whether the successor of the Income-tax Officer can act under s. 34 on the ground that the order of assessment passed by his predecessor was erroneous, and divergent views have been expressed on this point. Mr. <NAME>, for the respondent, suggested that under the provisions of s. 34 as amended in 1948, it would be open to the Income-tax Officer to act under the said section even if he merely changed his mind without any information from an external source and came to the conclusion that, in a particular case, he had erroneously allowed an assessee's income to escape assessment. We do not propose to express any opinion on this point in the present appeal. In the result we hold that <ORG> was right in coming to the conclusion that the decision of <ORG> was information within the meaning of s. 34 (1)(b) and that the said decision justified the belief of the Income-tax Officer that part of the appellant's income had escaped assessment for the relevant year.

The appeal accordingly fails and must be dismissed with costs.

Appeal dismissed.


JUDGMENT <NAME>, J.

1. The above batch of appeals against the order of <ORG> at Madras dated 14-8-1951 is before us by special leave.

2. The appellants preferred a number of petitions to <ORG> in what is known as the Hanuman Bank Conspiracy Case to quash no less than 67 charges framed against them by the Special Magistrate, <NAME>. <ORG> quashed all the charges but directed a retrial of the appellants (who were some of the accused) on the charge of conspiracy between October 1946 and April 1947 to falsify bank accounts and to bring into existence a false balance-sheet. It also decided to withdraw the case under Section 526 (1) (e), Criminal P. C. to itself and added a direction under Section 526 (2) that the case be tried by warrant procedure but without a jury. A strong recommendation was made to the <ORG>. for the appointment of a Director of Prosecutions on a fixed salary not much below that of a <ORG> Judge for handling this and other complicated cases.

3. The facts giving rise to these appeals are these: <ORG> was incorporated in Tanjore in 1933 with an authorized capital of Rs. 20,000/-. This was increased to five lakhs in 1943, and to seven lakhs in 1946. Accused 1, a retired Chief Engineer of <ORG>, was the President of <ORG> of the Bank. Accused 2, an ex-clerk of <ORG>, was its Managing Director. Accused 3, an ex-clerk of some coffee plantations, was one of the promoters of the bank and also its director. Accused 4, a doctor practising at Nagapattinam, was another director. Accused 5 was the auditor of the bank from its inception, while accused 6 was his assistant. Accused 7 to 10 held the office of Secretary, Accountant, Assistant Secretary and Inspector respectively. Accused 11 was the agent of the Nagapattinam branch, while accused 12 was an ordinary clerk. Accused 13 was the agent at Madras from 1945 after having been in employ since 1937. Accused 14 is the son of the Managing Director (accused 2) and after enrolment as an advocate is said to have been appointed agent of the Mathura branch. Accused 15 joined the bank in 1943 as a clerk and from 1948 was a branch agent. Accused 16 is the elder brother of accused 2. He was director from 1937 to 1940. Accused 17 is the brother of accused 2 and has no official connection with the bank Accused 18 is the nephew of accused 2. He was director till 1940. Accused 22 to 28 are all bank constituents of long standing who were given substantial overdraft facilities.

4. On 9-12-1946 <ORG> wrote a confidential letter to the Secretary of <ORG> inviting attention to Section 42 (6) (a), Reserve Bank Act , which required an application for registration as a schedule bank to be made as the previous balance-sheet disclosed an authorized capital which exceeded five lakhs. It is alleged that in December 1946 and January 1947 the officials of the bank desperately resorted to wholesale and fictitious manipulation of accounts to cover up a shortage in assets amounting to Rs. 5,31,704-12-0 and that in fact a false balance-sheet was prepared and passed and signed by accused 1 to 4, 5, 7 and 8 and also by other directors. On 15-7-1947 the bank suspended payment. An application was made in <ORG> on 26-7-1947 to wind up the bank and a winding up order was made on 5-11-1947 and <ORG> were appointed official liquidators.

A complaint filed by accused 1 in August 1947 against accused 2, 7, 8, 9, 10 and 14 was directed to be investigated by <ORG>, and eventually a charge-sheet was drawn up against 28 persons on 29-9-1948, alleging conspiracy commencing from 1938 to commit criminal breach of trust under Section 409 , I. P. C. and falsification of the accounts of the bank under Section 477A , I. P. C.

5. The actual trial of the accused commenced in November 1948 in the course of which over 6,000 exhibits were filed and 203 witnesses examined. The trial went on for two years and after completing the prosecution evidence the magistrate made the following order on 8-7-1950:

"The prosecution has been closed today. The evidence let in speaks of several facts and acts against the accused committed individually, jointly and collectively at various branches and at several places spreading over a period of nearly ten years. The charge-sheet is a bald one in that it does not make mention of many of such facts and acts.......... It is therefore necessary before proceeding further with the case that the prosecution should place before the Court in writing briefly a summary of its case as has been disclosed by the evidence against the accused individually or jointly and the section of law under which such acts constitute an offence."

In response to this order the prosecution presented to the Court a statement of the case covering 78 typed pages, which <ORG> says it glanced through in amazement. The Magistrate then proceeded to examine the accused and spent four months over it. Arguments in the case started in December 1950 and were continuing till March 1951. No wonder that at this moment of time the Magistrate fell ill and went into retirement. Meantime, an application had been filed by the Assistant Public Prosecutor to convert this into a preliminary register case and commit it to sessions.

6. A new magistrate then took charge of the case and passed an order directing the accused to be tried by the <ORG> of session. This order was set aside in revision by <ORG> (<NAME>) and the magistrate was directed to frame charges, if any, against the several accused after discharging those accused against whom no case was made out. The Assistant Public Prosecutor was directed to give full assistance to the <ORG> by crystallising and simplifying the prosecution case so far as possible. In pursuance of this direction the Assistant Public Prosecutor supplied the magistrate with a draft of 67 charges, who then proceeded to frame them against all the accused, except 19, 20 and 21, who were discharged. At this stage the petitions giving rise to these appeals were made to <ORG> and these again came up at first before <NAME> and later before <ORG>.

7. Before the Bench the Public Prosecutor said that it was utterly impossible to try any of the accused at one trial on such unintelligible and impossible charges. He urged that the trial should be for conspiracy to falsify bank accounts wholesale in December 1946. It was suggested that a way out of the impasse was to isolate the charge of conspiracy to falsify the accounts and try it separately.

8. <ORG> examined the respective contentions of the Public Prosecutor and of the counsel for the petitioners and after referring to the observations of Lord <NAME> in -- ' <CITATION> ', AIR 1929 Bom 128 (A), observed as follows :

"We do not think Lord <NAME> could have visualized the possibility of a case such as this, where after a trial before a magistrate lasting for 2 1/2 years a confused conglomeration of charges has resulted, bewildering not merely to any defending counsel, but also to any trying <ORG> and on the basis of which no further trial can possibly proceed on a vast accumulation of matter indiscriminately flung into the case. As regards magisterial discretion it has unfortunately been quite impossible for the magistrate who framed these charges to exercise any at all. He was called upon to deal with what appears to us an impossible situation and to frame charges on a vast mass of material with which even his predecessor, who sedulously piled it up at the instance of the prosecution, found it beyond his capacity to deal. He therefore merely accepted the draft charges presented to him by the Assistant Public Prosecutor. We are in sympathy with his helplessness and the predicament in which he found himself. He is a revenue magistrate without any legal training and we cannot blame him for accepting the guidance of the Assistant Public Prosecutor of Madras who must bear full responsibility for the charges framed in this case.

The present impasse is not the result of the law which presumes a certain amount of commonsense, practicability and responsibility not only in the accusation of a criminal conspiracy but also in its conduct of such a prosecution. We can find nothing whatsoever wrong or 'mala fide' in the accusation of conspiracy to falsify accounts from December 1946 but everything wrong with the way in which books, documents and papers of this bank under liquidation have been flung into this case without any attempt at selection or crystallising specific charges on which the prosecution sought to bring home the guilt to offenders. The Assistant Public Prosecutor has in fact tied himself, the case, the trying magistrate and also ourselves in a Gordian-knot of complication which is capable of no unravelling and one which can now, as it appears to us, be only cut through with a hatchet. We have no hesitation in quashing all the charges framed not on the legal ground of misjoinder, but for the other reasons we have given."

One would have thought that in view of these observations the petitions should have been allowed and proceedings terminated. It was quite dear that not only were the charges vague and unintelligible but it was impracticable to try them without confusion at one trial and in these peculiar circumstances <ORG> was justified in quashing them in the exercise of its inherent powers even before the conclusion of the trial. We find no justification in <ORG>'s judgment for ordering a 'de novo' trial in the situation that had arisen. All these persons had stood a protracted trial for two and a half years which, according to <ORG>, resulted in charges which were impossible to be tried at a single trial.

The Public Prosecutor had conceded that it was impossible to try the accused persons on those unintelligible and impossible charges. It would be placing a premium on the inefficiency of the prosecution by ordering a retrial in such circumstances which is bound to result in prejudice to the appellants and which may even lead to miscarriage of justice. During the two and a half years of the trial the accused must have exhausted all their resources of defending themselves land when <ORG> made a strong recommendation to government to appoint a Director of Prosecutions for the case on a salary of RS. 4,000 and also transferred the case to its own records, it ignored altogether the prejudice that such a procedure was sure to cause to the accused persons. The procedure adopted by <ORG> tends to divert the due and orderly administration of law into a new course and is likely to serve as an unwholesome precedent.

9. The most extraordinary part of the judgment of <ORG> is that it proceeded without any enquiry or trial, to let go certain persons in an arbitrary manner from retrial without determining their culpability. It said as follows :

"We are unable to accept the suggestion that accused 22 to 28 should also be included in this conspiracy charge. They were constituents of the bank whose accounts were juggled with in a manner of which they may not have been aware. The auditor's assistant, accused 6, accused 11, the agent of the Nagapattinam branch against whom several charge-sheets are pending, accused 17 and 18, 'we do not consider need be tried any further on any count in this unwieldy conspiracy case. Accused 4, though a director who signed the balance-sheet, is a doctor practising in Nagapattinam. The prosecution has not made all directors who signed it vicariously liable and in fact has examined two of them, <NAME>, P. W. 181, and <NAME>, P. W. 139, as prosecution witnesses. In quashing these charges we do not think there should be any further trial of accused 4, 6, 11, 16, 17, 18 and 22 to 28 on any counts in this charge-sheet, though we do not exonerate them from culpability, in view of the protracted trial to which they have been subjected."

The grounds given for absolving these accused during the pendency of a prosecution in the exercise of the powers under Section 561-A , Criminal P. C., are absolutely untenable. These persons having been left out of the case, retrial of the rest leaves the prosecution with a maimed case and may well not have been ordered, particularly when it was open to the liquidator to seek redress against the delinquents on the civil side. Any further trial of these cases would mean unnecessary harassment of the accused persons and is likely to result in injustice.

10. We have further not been able to follow why it was necessary to transfer the case to <ORG> and to deny the accused persons the right of trial by jury under Section 267 , Criminal P. C. We think that <ORG> overstepped the limits of its jurisdiction inasmuch as it exercised it in an arbitrary manner without keeping in mind the prejudice it would cause to the accused. Instead of leaving the prosecution to decide for itself what it should do after the charges have. been quashed, <ORG> took upon itself the duty of advising as to how this prosecution should be conducted and for what charges the accused might he tried and in what manner. <ORG> completely failed to observe that the direction for the trial of twelve accused who are residents of Tanjore district in a costly place like Madras, 200 miles away, was fraught with serious consequences to the accused and might in all probability result in depriving thorn of their legitimate means of defence and thus lead to miscarriage of justice. It also failed to sea that the procedure adopted by it may result in depriving the accused of their usual rights of appeal and might place them under the risk of incurring heavier penalties than they would otherwise incur.

11. We are fully alive to the fact that owing to the inefficient manner in which the prosecution was handled by the lawyers appearing for the Government and by the magistrates before whom the case was tried, the unfortunate result may be that persons who may have committed serious crimes might escape but if during all these years the accused have not been given the charges which they could reasonably follow and meet, such a result is unavoidable. We consider that further trial of these accused will not in any way advance the course of justice.

12. The result is that we feel constrained to quash the order of <ORG> directing a 'de novo' trial of the appellants. The appeals are therefore allowed, the order of <ORG> directing a 'de novo' trial of the appellants before itself is set aside and the order quashing the charges is upheld.