PETITIONER: <ORG> Vs. RESPONDENT: THE SECRETARY, BOARD OF REVENUE.TRIVANDRUM & ANR. DATE OF JUDGMENT: 13/08/1963 BENCH: <NAME>, K. BENCH: <NAME>, K. DAS, SUDHI RANJAN (CJ) DAYAL, RAGHUBAR AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R. CITATION: 1964 AIR 207 1964 SCR (4) 280 CITATOR INFO : F 1964 SC1172 (17) R 1964 SC1903 (28) MV 1971 SC 530 (410) R 1971 SC1930 (4,6,10) R 1973 SC1461 (1946) E 1980 SC 962 (80) F 1987 SC 117 (68) ACT: Sales Tax-assessment in respect of works contracts- Constitutionality--Agreements between President and <NAME> of Part B <ORG>-Validity-Continuance in force of existing laws and their adaptation--"Subject to the other provisions of the Constitution"Scope and effect of- Constitution of India, Arts. 277, 278, and 372 Travancore- Cochin General Sales Tax Act. It of 1125 M.E.-Travancore- Cochin General Sales Tax Act 1957 (12 of 1957)-Kerala Act 11 of 1957. HEADNOTE: On March 17, 1959 the appellant, a private limited company was assessed to sales tax under the Travancore Cochin General Sales Tax Act, 1125 M.E. for the assessment vear 1952-53 in respect of "works contracts". The company filed a revision petition before the 1st respondent, but it was rejected. Likewise, the 2nd respondent assessed the company to sales tax for the assessment years 1956-57, 1957-58, 1958-59 in respect of "works contracts". The assessment for the year 1952-53 was made only under the Travancore-Cochin General Sales Tax Act (11 of 1125 M. E.) and, therefore, the subsequent alleged enhancement of the tax did not affect the assessment of that year. Assessment for the years 1956-57, 1957-58 and 1958-59 were made under the Travancore-Cochin General Sales Tax (Amendment) Act, 1957(12 of 1957) and, therefore, the provisions if any, enhancing the rate under the Act would affect the said assessments. The enhancements made under the Kerala Act 11 of 1957 would not govern the assessment year 1956-57 but only the assessment years 1957- 58 and 1958-59. The appellant moved <ORG> under Arts. 226 and 227 of the Constitution for quashing the said orders of assessment. The petitions were dismissed. In this Court, the appellant mainly contended : (1) Art. 277 can only save the levy of a tax that was being lawfully levied by a <ORG> immediately before the commencement of the Constitution and that as the Act came into force only after the Constitution, the levy made thereunder does riot satisfy the condition laid down by the Article. (2) Assuming that Art. 2 77 saved the levy of a tax under the Act, there was an agreement between the President of India and the Raj- pramukh of tile <ORG> of Travancore-Cochin and under the said agreement the <ORG> agreed to recoup the loss in revenue incurred by the said <ORG> by reason of the constitutional transference of the B <ORG>'s power of taxation in respect of certain items to the <ORG> List and that, thereafter, the <ORG> ceased to have the power to levy any tax in 281 respect of the subjects so transferred. (3) Article 372 is subject to other provisions of the Constitution and a law empowering a <ORG> to impose a tax in respect of a federal subject is inconsistent with the federal structure of the Constitution and, therefore, is bad; and, that apart, it is also inconsistent with the express provisions of Part XII of the Constitution and particularly with those of Arts. 277 and 278 thereof. Held: The tax under the Act would not be saved, as the necessary condition that the levy should have been lawfully made before the Constitution, was not satisfied. The effect of the provisions in Art. 278 is that to the extent covered by an agreement the power of the <ORG> Government to continue to levy taxes under Art. 277 is superseded. <CITATION> .  3 S.C.R. 524, applied. The agreement in question fell squarely within the scope of the power. That would have its full force unless the Constitution (Seventh Amendment) Act, 1956, in terms avoided it. The said amendment was only prospective in operation and it could not have affected the validity of the agreement. It must be held, therefore, that the impugned assessment orders were not validly made by the sales tax authorities in exercise of the power saved under Art. 277 of the Constitution. A pre-Constitution law made by a competent authority, though it has lost its legislative competency under the Constitution, shall continue in force, provided the law does not contravene the 'other provisions" of the Constitution. <ORG> v. <ORG>, Maatan- cherry, I.L.R  Kerala 462, <ORG> v. <ORG>, I.L.R.  I Aft 862, <CITATION> , A.I.R. 1955 All 99, <ORG> v. <ORG>, Chhindwara,  1 S.C.R. 1, jagdish <CITATION> A.I.R. 1961 All. 583; <NAME> v. M. P. <ORG>, A.I.R. 1951 Nag. 58, <CITATION> , A.I.R. 1957 Punj. 91 and <CITATION> , A.I.R. 1954 Pat. 346, followed. Article 372 cannot be construed in such a way as to enlarge the scope of the saving of taxes, duties, cesses or fees. Article 372 must be read subject to Art. 277. While Art. 372 is subject to Art. 278 , Article 278 operates in its own sphere in spite of Art. 372. The result is that Art. 278 overrides Art. 372; that is to say, notwithstanding the fact that a pre-Constitution taxation law continues in force under Art.372 , the <ORG> and 19-2 S. C. India/64 282 the <ORG> Governments can enter into an agreement in terms of Art. 278 in respect of Part B <ORG>s depriving the <ORG> law of its efficacy. In one view Art. 277 excludes the operation of Art. 372 , and in the other view, an agreement in terms of Art. 278 overrides Art. 372. In either view, the result is the same, namely, that at any rate during the period covered by the agreement the <ORG>s ceased to have any power to impose the tax in respect of "works contracts". The said orders of assessment, therefore, must be set aside. Chicago, Rock Island and <ORG> v. <NAME>, (1884) 29 L. Ed. 270 and <NAME> v. City of Manila, (1910) 55 L. Ed. 491, distinguished. JUDGMENT:

CIVIL APPELLATE, JURISDICTION : Civil Appeals Nos. 295 to 298 of 1962.

Appeals from the judgment and order dated February 3, 1961, of <ORG> in 0. Ps. Nos. 232 of 1957, 70, 71 and 673 of 1960.

<NAME>, 1<NAME>, <NAME> and <NAME>, for the appellant.

<NAME>, Advocate-General for the <ORG> of Kerala and <NAME>, for the respondents. August 13, 1963. The Judgment of the Court was delivered by <NAME> four companion appeals arise out of a common judgment of <ORG> dismissing the four petitions filed by the appellant seeking to quash the orders of assessment made by the Sales Tax authorities imposing sales tax in respect of "works contracts". The undisputed facts may briefly be stated. The appellant is a private limited company incorporated under the Indian Companies Act . The principal office of the <ORG> is at Mattancherry. It carries on business in iron, hardware, electrical goods, timber, coir, engineering contracts etc. In the course of its business, the <ORG> acted as engineering contractor for the <ORG> and <ORG> departments and also for private parties. On March 17, 1959, the Sales Tax Officer, special <ORG>, Ernakulam assessed the <ORG> to sales tax under the Travancore Cochin General Sales Tax Act, 1125 M.E. for the assessment year 1952-53 in respect of "works contracts". The <ORG> filed a revision petition before the 1st respondent, but it was rejected. Likewise the 2nd -respondent assessed the Com-

pany to sales tax by his orders dated- 7-1-1960, 4-1-1960 and 31-3-1960 for the assessment years 1956-57, 1957-58 and 1958-59 in respect of "works contracts". The appellant filed four petitions in <ORG> under Arts. 226 and 227 of the Constitution for quashing the said orders of assessment. The main contention advanced on behalf of the appellant-Company before <ORG> was that, after the Constitution came into force the relevant Sales Tax Act s imposing sales tax on "works contracts" were uncons- titutional and, therefore, void. <ORG> rejected the contention and dismissed the petitions with costs. Hence the appeals.

Before adverting to the rival contentions it would be convenient at the outset to give briefly the historical background of the sales tax legislation in Kerala. Originally, Travancore and Cochin were two separate sovereign States having plenary powers of taxation. In the Cochin State, the Cochin General Sales Tax Act 15 of 1121 M.E. and in the Travancore State, the Travancore General Sales Tax Act 18 of 1124 M.E. imposed tax on "works con- tracts". As a result of the merger of the two States, the United State of Travancore-Cochin was formed with a common <ORG>. The said <ORG> enacted the Travancore- Cochin General Sales Tax Act 11 of 1125 M.E. (1950), hereinafter called the Act. The said <ORG> also had plenary powers of taxation and, therefore, it validly imposed sales tax on "works contracts". The Act was publi- shed in the <ORG> on January 17, 1950, but s. 1(3) thereof provided that it would come into force on such date as the Government might, by notification in the <ORG>, appoint. The requisite notification was issued by the Government in May 30, 1950. Rules were framed under POWers conferred by s. 24 of the Act prescribing the mode, inter alia, for ascertaining the amounts for which goods were sold in relation to "works contracts". Rules 4(3) provided that, "For the purposes of sub-rule (1), the amount for which goods are sold by a dealer shall, in relation to a works contract, be deemed to be the amount payable to the dealer for carrying out such contract less a sum not exceeding such percentage of the amount payable as may be fixed by <ORG> from time to time for different areas, representing the usual propor-

tion in such areas of the cost of labour to the cost of materials used in carrying out such contract, subject to the following maximum percentages:-

But, it is stated that <ORG> did not fix the percentage for deduction from the amount payable to the dealer for carrying out a works contract. This fact was not denied in <ORG>, but before us an application is made to produce the Travancore-Cochin Gazette to establish that such a percentage was fixed. The Rules also were notified on May 30, 1950. The earlier Acts of Travancore and Cochin were repealed from May 30, 1950. Till May 30, 1950, sales tax was levied on works contracts in Travancore and Cochin areas under the respective Acts and the rules framed thereunder. As from the said date the said Acts were repealed, thereafter the said tax was imposed under the Act and the rules framed thereunder. On November 1, 1956, the States Reorganization Act of 1956 came into force and the new State of Kerala was formed thereunder. The newly formed Kerala State comprised the area covered by the Travancore- Cochin State, excepting a small part thereof, and the district of Malabar in the Madras State. Thereafter, <ORG> passed the Travancore-Cochin General Sales Tax (Amendment) Act, 1957 (12 of 1957) amending the Act and extending its provisions to the whole State of Kerala. The new Act practically contained the provisions of the earlier Act. The said Act came into force on October 1, 1957. By the provisions of Act 12 of 1957, among other things, the tax on electric goods was enhanced from 3 n.p. to 4 n.p. in the rupee and in regard to cement, this item was freshly added and charged to sales tax at 5 n.p. in the rupee. The State of Kerala does not admit that (tither there was any enhancement of tax in the case of electrical goods or that any tax was imposed in regard to cement involved in a works contract. Further, the sales tax leviable under the Act was enhanced by the Kerala Surcharge on Taxes Act , 1957  and again by the Kerala Surcharge on Taxes Act , 1960. We are not concerned with the latter Act as no assessment was made under that Act in respect of any of the transactions in question. The factual position may, therefore, be stated thus:

The assessment for the year 1952-53 was made only under the Travancore-Cochin General Sales Tax Act (11 of 1125 M.E.) and, therefore, the subsequent alleged enhancement ,of the tax does not affect the assessment of that year. Ass- essments for the years 1956-57, 1957-58 and 1958-59 were made under the Travancore-Cochin General Sales Tax (Amendment) Act, 1957 (12 of 1957) and, therefore, the provisions, if any, enhancing the rate under the Act would affect the said assessments. The enhancements made under the Kerala Act 1 1 of 1957 would not govern the assessment year 1956-57, but only the assessment vears 1957-58 and 1958

59. The material contentions of Mr. <NAME>, appearing for the appellant may be summarised thus : (1) The Travancore-Cochin Act of 112.5 would not continue in force under Art. 372 of the Constitution inasmuch as its provisions were inconsistent with the structure of the Constitution as well as with the provisions of Part XII thereof. (2) Art. 277 of the Constitution cannot be relied upon by the respondent, as it can be availed of only : (a) if a particular tax was lawfully levied by the Government of the <ORG> immediately before the commencement of the Constitution and is expressly mentioned in the Union List, and (b) if there is an identity between the tax imposed by the <ORG> before the Constitution and that continued by it thereafter in respect of rate, area, <ORG> and purpose. It is said that the said two conditions are not satisfied. (3) Assuming that Art. 277 applied, the said provision could not be relied upon by the appellant in view of the agreement entered into between the <ORG> of Travancore and <ORG> under Art. 278 of the Constitution. (4) The impugned Act, in so far as it imposed tax in respect of "works contracts", would offend Art. 14 of the Constitution inasmuch as it was not applied to areas other than those covered by the Travancore-Cochin <ORG>s and, therefore, discriminatory in its application. And (5) in any view, in respect of the assessment year 1952- 53 the nonfiction of the percentage by <ORG> under r. 4(3) of the Rules made under the Act renders the said assessment illegal.

The learned Advocate-General of Kerala counters some of the said arguments. We shall refer to his arguments in the course of the judgment at appropriate places. It may be mentioned at this stage that the learned Advocate-General conceded that the assessment orders for the years 1956-57, 1957-58 and 1958-59 made under the Travancore-Cochin General Sales Tax (Amendment) Act, 1957 (12 of 1957) and the Kerala Surcharge on Taxes Act  were bad, but prayed that the State might be given liberty to assess the appellant de novo for the said years under the Act. The main contention of learned counsel for the appellant centres on the provisions of Arts. 277 and 278 of the Constitution. Under Art. 277 , any taxes that were being lawfully levied by the Government of any State before the Constitution could be continued to be levied thereafter, notwithstanding that the said taxes were mentioned in the Union List, till <ORG> made a law to the contrary. Article 278 enables <ORG> and a State Government specified in Part B of the First Schedule to the Constitution to enter into an agreement with respect to levy and collection of any tax leviable by <ORG> in such State and for the distribution of the proceeds thereof and also in respect of the grant of any financial assistance by <ORG> to such State if it incurred any loss of revenue derived by it from any source. Under cl. (2) thereof, such an agreement shall continue in force for a period of ten years from the commencement of the Constitution. We are not concerned here with the legal position after the expiry of the said period, and we do not propose to express our view thereon.

The first contention of learned counsel for the appellant is that Art. 277 of the Constitution can only save the levy of a tax that was being lawfully levied by a State immediately before the commencement of the Constitution and that, as the Act came into force only after the Constitution, the levy made thereunder does not satisfy the condition laid down by the article. To appreciate this contention some relevant facts may be recapitulated. The Act was published in the <ORG> on January 17, 1950, but was brought into force only on May 30, 1950, i .e., after the commencement of the Constitution. If so, it follows that the tax under the Act would not be saved, as necessary condition that the levy should have been lawfully made before the Constitution was not satisfied.

On the assumption that Art. 277 saved the levy of tax under the Act, the further contention of the appellant is that there was an agreement dated February 25, 1950 between the President of India and the Rajpramukh of the <ORG> of Travancore-Cochin in the matter of the federal financial integration in the said <ORG> and that under the said agreement the <ORG> agreed to recoup the loss in revenue incurred by the said <ORG> by reason of the constitutional transference of the B <ORG>'s power of taxation in respect of certain items to the <ORG> List and that, thereafter, the <ORG> ceased to have the power to levy tax in respect of the subjects so transferred. The learned Advocate-General, on the other hand, contends that Art. 278(2) enables the <ORG> and a B <ORG> to enter into an agreement only in respect of a tax leviable by <ORG> in the said <ORG> and in respect whereof a loss has been incurred by the <ORG> by reason of the fact that under the Constitution it has ceased to have the power to levy and collect the said tax, and that, as in the instant case by reason of Art. 277 the <ORG> would continue to have the power to levy the tax in respect of "works contracts" till <ORG> made appropriate law, it did not incur any loss in respect of the said tax and, therefore, no valid agreement could be entered into between the <ORG> Government and the <ORG> in respect thereof. To state it differently, Art. 278 does not come into play unless <ORG> acquires the power to levy a particular tax saved by Art. 277 by <ORG> making an appropriate law; for, it is said, with some force, there cannot be an agreement to recoup any loss of revenue when there is no such loss. But this question is covered by a decision of this Court in <CITATION> .(1). There, the question for determination was whether the <ORG> of India was entitled to levy and recover arrears of excise duty-on cotton cloth for the period April 1, 1-949 to March 31, 1950, payable by the respondent, a cloth mill in the <ORG> of Rajasthan, under the Rajasthan Excise duties Ordinance, 1949. By reason of Art. 277 of the Constitution, the <ORG> of Rajasthan became entitled to recover the said duty notwithstanding the fact that it was transferred to the <ORG> List. The provision to the contrary contemplated by (1)  3 S.C.R. 524.

Art. 277 of the Constitution was made by Finance Act XXV of 1950 s. 11 whereof extended the Central Excise and Salt Act , 1944, along with other Acts, to the whole of India except the State of Jammu and Kashmir. That section had effect only from April 1, 1950 and did not apply to arrears of duty of excise in regard to the earlier period. The Union pleaded that an agreement envisaged by Art. 278 was entered into on, February 25, 1950 which conceded to the Centre the right to levy and collect the arrears of duty ill question. The question now raised before us, namely, whether there can be a valid agreement under Art. 278 of the Constitution in respect of taxes leviable by the State and leviable by <ORG> till an appropriate law is made by <ORG> arose for consideration in that case. The learned Chief Justice, speaking for the <ORG> came to the following conclusion, at p. 535 :

"Thus, the combined operation of Arts. 277 and 278 read with the agreement vests the power of levy and collection of the duty in the Union of India".

The reasons for the conclusion arc found at p. 5,33:

"It is noteworthy that the provisions of Art. 278 override pro tanto other provisions of the Constitution including Art..277 and the terms of the agreement override the provisions of the Chapter, namely Chapter I of Part XII .... Article 277 , therefore, is in the nature of a saving provision permitting the States to levy a tax or a duty which, after the Constitution, could be levied only by the Centre. But Art. 277 must yield to any agreement made between

-the Government of India and the <ORG> in Part B in respect of such taxes or duties, etc."

The learned Chief Justice proceeded to state thus at p. 535: "That a duty of the kind now in controversy on the date of the agreement after coming into force of the Constitution is leviable only by the Government of India even in respect of the State of Rajasthan is clear beyond all doubt. The Union List only, namely, entry 84 in the Seventh Schedule, authorises the levy and collection of the duty in question...................... It is true that Art. 277 has saved, for the time being, until <ORG> made a provision to the contrary, the power of the State of Rajasthan to levy such a duty, but that is only a saving provision, in terms subject to the provisions of Art. 278."

This Court, therefore, held that after the coming into force of the Constitution the excise duty in question in that case was leviable only by the Government of India, though there was a saving provision in favour of the <ORG> of Rajasthan till <ORG> made an appropriate law; and on that rea- soning it held that the agreement under Art. 278 could be made in respect of such a levy notwithstanding the temporary reservation made in favour of the <ORG>. The only difference between that case and the present one is that at the time the agreement was entered into between the <ORG> and the <ORG>, <ORG> had not made the appropriate law depriving the <ORG> of its power to levy taxes in respect of "<ORG> contracts". But that cannot make any difference in principle, for, even the earlier decision related only to the validity of the agreement in respect of arrears leviable by the <ORG> before the appropriate law was made. The effect of the provisions in Art. 278 is that to the extent covered by an agreement the power of the <ORG> Government to continue to levy taxes under Art. 277 is superseded. The next question is whether there was any such agreement where under the <ORG> agreed to give up its right to levy the said tax as a part of the agreement entered into by it with the <ORG>. This leads us to consider the terms of the agreement dated February 25, 1950, entered into between the President of India and the Rajpramukh of the <ORG> of Travancore-Cochin. It would be convenient to read the relevant clauses of the agreement. It reads:

"WHEREAS provision is made by Articles 278, 291, 295 and 306 of the Constitution of India for certain matters to be governed by agreement between the Government of India and <ORG> specified in Part B of the First Schedule to the Constitution: Now, therefore, the President of India and the <NAME> of Travancore-Cochin, have entered into the following agreement, namely:

The recommendations of <ORG>, 1948-49 (hereafter referred to as the <ORG>) contained in Part I of its Report read with Chapters 1, II and III of Part 11 of its Report, in so far as they apply to Travancore-Cochin (hereinafter referred to as the State) together with the recommendations contained in the <ORG>'s Second Interim Report, are accepted by the parties thereto subject to the following modifications, namely:-

(1) With reference to paragraph 6 of the <ORG>'s Second Interim Report, the date of federal financial integration of the <ORG> shall be 1st April 1950.

(3) The <ORG>'s formula of guaranteeing the federal' revenue-gap for the first five years after federal financial integration and of tapering it down over the next five years will be applied to the combined 'federal' revenue-gap of the former Indian States, Travancoreand Cochin, taken together, computed as in (2) above.

Subject to the provisions of the Constitution of India, this agreement shall, except where the context of the <ORG>'s Report and of this agreement otherwise require, remain in force for a period of ten years from the commencement of the Constitution of India". It will be seen from the said agreement that it incorporated the recommendations made by the Indian <ORG>s Finances Enquiry <ORG> with some modifications and that <ORG> agreed to recoup the <ORG> for the loss caused to it by reason of the federal financial integration in the manner described thereunder. It was not a piecemeal agree- ment confined to a few items, but a comprehensive one to fill up the entire revenue-gap caused to the <ORG> by reason of some of its sources of revenue having been taken away by the <ORG> or otherwise lost to it. A perusal of the main recommendations made by the Indian <ORG>s Finance Enquiry <ORG> and incorporated in the agreement also indicates the completeness of the agreement. The <ORG> was asked to examine and report, inter alia.. whether, and if so, the extent to which, the process of so integrating <ORG> in the Indian <ORG>s and <ORG> with that of the rest of India should be gradual and the manner in which it should be brought about. One of the general principles followed by the <ORG> was that federal financial integration in <ORG>s involved not merely the taking over of all their "federal" revenues by the <ORG>, but also the assumption of all expenditure in <ORG>s upon Departments and Services of a "federal" character. In Ch. 11 of Part II, which dealt with "Specific matter concerning "Federal" revenues and "Federal" service departments, it was stated that with effect from the prescribed date, the <ORG> will take over all "federal" sources of <ORG> and all "federal" items of expenditure in <ORG>s, together with the administration of the Departments concerned, and that the <ORG> must also take over all the current outstandings, liabilities claims, etc. and all productive and unproductive Capital assets connected with these departments. Dealing with the <ORG>s' rights, it observed:

"With effect from the prescribed date, all 'rights and immunities' enjoyed or claimed by the States, whether expressly or by usage, and whether relating to 'federal' revenues and taxes generally present or future, or to specific matters such as <ORG>, <ORG>, <ORG>, Opium, Salt, etc. will terminate and must be extinguished. Thereafter, their constitutional position in respect of these matters should be the same as that of provinces under the new Constitution of India."

The <ORG> recommended that the whole body of <ORG> legislation relating to "federal" subjects should be repealed and the corresponding body of Central legislation extended proprio vigore to the <ORG>s, with effect from the prescribed date, or as and when the administration of particular "federal" subjects is assumed by the <ORG>. In its Second Interim Report, dealing with Travancore and Cochin, the following recommendations were made:

"Revenue Gap" arising out of Federal Financial Integration:

(i)The net revenue loss to the Travancore and Cochin States, taken together, upon federal financial integration (on the basis of figures for their financial vear 1123 M.E.) would be Rs. 330 lakhs; this includes a net loss of Rs. 100 lakhs by abolition of internal <ORG> Duties - in Travancore State.

(ii) We recommend that-

(a) the loss resulting from the immediate abolition of Internal Customs Duties of Travancore must be borne by the State Government:

(b) as regards the residual net "Central" Revenue Gap of the two States taken together (Rs. 230 lakhs), there should be a guaranteed reimbursement by <ORG> to the following extent during a transitional period:-

From the date or' federal financial integration Rs. 230 lakhs per annum to 31st March 1955.

The agreement, read with the Report, makes the following position clear : The loss arising to the <ORG> on account of the federal financial integration in the <ORG> was ascertained and a provision was made for subsidizing the <ORG> by filling up the said revenue-gap. The agreement ex- facie appears to be a comprehensive one. It takes into consideration the entire loss caused to the <ORG> by reason of some of its sources of revenue being transferred under the Constitution to the <ORG>. It would be unreasonable to construe the agreement as to exclude from its operation certain taxes which the <ORG> was authorized to levy for a temporary period. As we have said, that saving was subject to an agreement and, as by the agreement effective adjustments were made to meet the loss which the <ORG> would have incurred but for the agreement, there was no longer any necessity for the continuance of the saving and, it ceased to have any force thereafter between the parties to the agreement. We are not called upon in this case to decide whether the said power revived after the expiry of ten years from the commencement of the Constitution, for all the impugned assessments fall within the said period. Nor do we find any force in the contention that as Art. 278 was omitted by the Constitution (Seventh Amendment) Act, 1956, the agreement entered into in exercise of a power thereunder automatically came to an end and thereafter the power of the <ORG> to levy the tax came into life again. An obvious fallacy underlies this ingenious argument. The validity of an agreement depends upon the existence of power at the time it was entered into. Its duration will be limited by its terms or by the conditions imposed on the power itself. Article 278 conferred a power upon the <ORG> and the B <ORG> to enter into an agreement which would continue in force for a period not exceeding ten years from the commencement of the Constitution. The agreement in question fell squarely within the scope of the power. That agreement, there-

fore, would have its full force unless the Constitution (Seventh Amendment) Act, 1956, in terms avoided it. The said amendment was only prospective in operation and it could not have affected the validity of the agreement. We, therefore, hold that the impugned assessment orders were not validly made by the sales tax authorities in exercise of the power saved under Art. 277 of the Constitution. Learned Advocatc-General for the <ORG> of Kerala raises an interesting point, namely, that the impugned law, i.e., the Travancore-Cochin General Sales Tax Act of 1125 M. E. continued in force after the Constitution under the express provisions of Art. 372 thereof till the said law was altered, repealed or amended by the competent authority and, therefore, even if there was an agreement between the <ORG> and the <ORG> as aforesaid, it could not affect the power of the <ORG> to impose the tax under the said law. Mr. <NAME>, on the other hand, argues that Art. 372 is subject to other provisions of the Constitution and a law empowering a <ORG> to impose a tax in respect of a federal subject is inconsistent with the federal structure of the Constitution and, therefore, is bad; and, that apart, it is also inconsistent with the express provisions of Part XII of the Constitution and particularly with those of Arts. 277 and 278 thereof. Article 372 reads:

"(1) Notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent <ORG> or other competent authority. Explanation I.-The expression "law in force" in this article shall include a law passed or made by a <ORG> or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that it or parts of it may not be then in operation either at all or in particular areas."

The object of this article is to maintain the continuity of the pre-existing laws after the Constitution came into force till they were repealed, altered or amended by a competent authority. Without the aid of such an article there would be -utter confusion in the field of law. The assumption underlying the article is that the <ORG> laws may or may not be within the legislative competence of the appropriate authority under the Constitution. The article would become ineffective and purposeless if it was held that pre- Constitution laws should be such as could be made by the appropriate authority under the Constitution. The words "subject to the other provisions of the Constitution" should, therefore, be given a reasonable interpretation, an interpretation which would carry out the intention of the makers of the Constitution and also which is in accord with the constitutional practice in such matters. The article posits the continuation of the pre-existing laws made by a competent authority notwithstanding the repeal of certain acts under Art. 395; and the expression "other" in the article can only apply to provisions other than those dealing with legislative competence.

The learned Advocate-General relied upon the following decisions for the said legal position: Messrs. Gannon Dunkerley & Co. v. <ORG>, Mattancherry(1) ; <CITATION> (2); <CITATION> , Kanpur(1); <CITATION> , Chindwara(4); <CITATION> (1); <CITATION> (1); <CITATION> (7); and <CITATION> (8).

It is not necessary to consider in detail the said decisions, as they either assume the said legal position or sustain it, but do not go further. They held that a law made by a competent authority before the Constitution continues to be in force after the Constitution till it is altered or modified or repealed by the appropriate authority, even though it is beyond the legislative competence of the said authority under the Constitution. We give our full assent to the view and hold that a pre- Constitution law made by a competent authority, though it has lost its legislative competency un-

(1) I.L.R. 1957 Kerala 462.

(2) I.L.R. (1952) 1 All. 862.

(8) Al.R. 1955 All. 99.

(4) [1962] I S.C.R. 1.

(5) A.I.R. 1961 All. 583.

(6) A.I.R. 1951 Nag. 58.

(7) A.I.R. 1957 Punjab 91.

(8) A.I.R. 1954 Pat. 346.

der the Constitution, shall continue in force, provided the law does not contravene the "other provisions" of the Con- stitution.

But the real question is whether the said impugned law is inconsistent with the provisions of the Constitution other than those dealing with its legislative competency. The words "subject to other provisions of the Constitution" mean that if there is an irreconcilable conflict between the pre- existing law and provision or provisions of the Constitution the latter shall prevail to the extent of that inconsistency. An article of the Constitution by its express terms may come into conflict with a pre-Constitution law wholly or in part; the said article or articles may also, by necessary implication, come into direct conflict with the pre-existing law. It may also be that the combined operation of a series of articles may bring about a situation making the existence of the pre-existing law incongruous in that situation. Whatever it may be, the inconsistency must be spelled out from the other provisions of the Constitution and cannot be built up on the supposed political philosophy underlying the Constitution. These observations are necessitated by the reliance of Mr. <NAME> on two decisions of <ORG> of the United States of America. In Chicago, <ORG> v. <NAME>), the facts, briefly were: An Act of Kansas purported to cede to the United States exclusive jurisdiction over the Fort Leavenworth Military Reservation. In considering the question whether the previous laws continued after the said cession, <ORG> of the United States of America made a distinction between laws of political character and municipal laws intended for the protection of private rights, but we are not concerned with that question in this case; and indeed the law of India appears to be different from that of America in that regard. But what is relied upon is the ,effect of cession on pre-existing laws which are in conflict with the political character institution and Constitution of the new Government. <NAME>, speaking for the <ORG> observed, at p. 272, as follows:

"As a matter of course, all laws, ordinances and regulations in conflict with the political character, institution and Constitution of the new government art at once (1) (1884) 29 L. ed. 270.

displaced. Thus, upon a cession of political jurisdiction and legislative power-and the latter is involved in the former-to the United States, the laws of the country in support of an established religion or abridging the freedom of the press, or authorising cruel and unusual punishments, and the like, would at once cease to be of obligatory force without any declaration to that effect; and the laws of the country on other subjects would necessarily be superseded by existing laws of the new government upon the same matters." . The same view was reiterated by <ORG> of the United States of America in a later decision in <NAME> v. City of Manila(1). We are not concerned in this case with the general principles enunciated by the law of America, but only with the express provisions of Art. 372 of our Cons- titution. That apart, it may also be inappropriate to rely upon the legal consequences of a cession of a State under the American law for the interpretation of Art. 372 of our Constitution, which deals with different situation and lays down expressly the legal position to meet the same. We would, therefore, confine our attention to the express pro- visions of the Constitution in considering the question rai- sed before us.

The relevant provisions which have a bearing on the said question arc found in Part XII of the Constitution. Chapter I deals with finance; and this chapter contains a scheme of federal financial integration in the States. Though the Constitution conferred upon the <ORG> and the States independent powers of taxation and constituted separate consolidated funds, it evolved a procedure for an equitable readjustment of the taxes collected between the <ORG> and the States. But before the Constitution came into force the States were levying and collecting certain taxes which, under the Constitution, were allotted to the <ORG>. The immediate exercise of the <ORG> power of taxation in respect of such taxes would dislocate the finances of the States and introduce difficulties in the administration. To avoid this, Art. 277- saved the existing taxes levied by the States, though they have been transferred to the <ORG> List by the Constitution, till <ORG> made appropriate law. But the Constitution was also made applicable to Part B (1910) 55 L. Ed. 491.

States. They had plenary powers of taxation. Their relationship with the paramount power differed from State to State. Further, most of the States were in a state of financial instability and required substantial help from the <ORG> to bring them up to the standard of Part A States. There would be a serious dislocation in the administration of the said States by a sudden withdrawal of the federal sources of revenues. The provisions of Part XII of the Constitution with the saving embodied in Art. 277 , may have met the situation obtaining in Part A States, but they were inadequate for Part B States. Therefore, a special provision under Art. 278 was made in respect of Part B States enabling them to enter into an agreement with the <ORG> embodying terms contrary to the other provisions of the Constitution in respect of levy and collection of taxes and the grant of any financial assistance to such State or States.

With this background let us now consider the following two questions raised before us: (1) Whether Art. 372 of the Constitution is subject to Art. 277 thereof-; and (2) whether Art. 372 is subject to Art. 278 thereof. Article 372 is a general provision and Art. 277 is a special provision. It is settled law that a special provision should be given effect to the extent of its scope, leaving the general provision to control cases where the special provision does not apply. The earlier discussion makes it abundantly clear that the Constitution gives a separate treatment to the subject of finance, and Art. 277 saves the existing taxes etc. levied by States it the conditions mentioned therein are complied with. While Art. 372 saves all pre-Constitution valid laws, Art. 277 is confined only to taxes, duties, cesses, or fees lawfully levied immediately before the Constitution. Therefore, Art. 372 cannot be construed in such a way as to enlarge the scope of the saving of taxes, duties, cesses or fees. To state it differently, Art. 372 must be read subject to Art. 277. We have already held that an agreement can be entered into between the <ORG> and the States in terms of Art. 278 abrogating or modifying the power preserved to the States under Art. 277.

That apart, even if Art. 372 continues the pre-Constitution laws of taxation, that provision is expressly made subject to the other provisions of the Constitution. The expression "subject to" conveys the idea of a provision yielding 20--2 S C India/64 place to another provision or other provisions to which it is made subject. Further Art. 278 opens out with a non- obstante clause. The phrase "notwithstanding anything in the Constitution is equivalent to saying that in spite of the other articles of the Constitution, or that the other articles shall not be an impediment to the operation of Art.

278. While Art. 372 is subject to Art. 278 , Art. 278 operates in its own sphere in spite of Art. 372. The result is that Art. 278 overrides Art. 372; that is to say, notwithstanding the fact that a pre-Constitution taxation law continues in force under Art. 372 , the <ORG> and <ORG> can enter into an agreement in terms of Art. 278 in respect of Part B States depriving the State law of its efficacy. In one view Art. 277 excludes the operation of Art. 372 , and in the other view, an agreement in terms of Art. 278 overrides Art. 372. In either view, the result is the same, namely, that at any rate during the period covered by the agreement the States ceased to have any power to impose the tax in respect of works contracts". In this view we need not express our opinion on the other contentions raised by Mr. <NAME>.

In the result, the said orders of assessment are set aside and the appeals are allowed with costs here and in <ORG>. One set of hearing fee.

Appeals allowed.


CASE NO.: Appeal (crl.) 919 of 1999 PETITIONER: <NAME> (D) & Ors. RESPONDENT: State of M.P. DATE OF JUDGMENT: 16/11/2004 BENCH: <NAME> & C.K.THAKKER JUDGMENT:

J U D G M E N T ARIJIT PASAYAT, J.

"If you once forfeit the confidence of our fellow citizens you can never regain their respect and esteem. It is true that you can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time", said <NAME>. This Court in <CITATION> (AIR 1980 SC 1087) and <CITATION> (2003 (7) SCC 749), took note of these immortal observations while deprecating custodial torture by the police.

Custodial violence, torture and abuse of police power are not peculiar to this country, but it is widespread. It has been the concern of international community because the problem is universal and the challenge is almost global. The Universal Declaration of Human Rights in 1948 which marked the emergence of a worldwide trend of protection and guarantee of certain basic human rights stipulates in Article 5 that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". Despite this pious declaration, the crime continues unabated, though every civilized nation shows its concern and makes efforts for its eradication.

If it is assuming alarming proportions, now a days, all around it is merely on account of the devilish devices adopted by those at the helm of affairs who proclaim from roof tops to be the defenders of democracy and protectors of peoples' rights and yet do not hesitate to condescend behind the screen to let loose their men in uniform to settle personal scores, feigning ignorance of what happens and pretending to be peace loving puritans and saviours of citizens' rights.

Article 21 which is one of the luminary provisions in the Constitution of India, 1950 (in short the 'Constitution') and is a part of the scheme for fundamental rights occupies a place of pride in the Constitution. The Article mandates that no person shall be deprived of his life and personal liberty except according to the procedure established by law. This sacred and cherished right i.e. personal liberty has an important role to play in the life of every citizen. Life or personal liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the <ORG> or its functionaries. Chapter V of the Code of Criminal Procedure, 1973 (for short the 'Code') deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person. Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees held out for making life meaningful and not a mere animal existence. It is, therefore, difficult to comprehend how torture and custodial violence can be permitted to defy the rights flowing from the Constitution. The dehumanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of rule of law and administration of criminal justice system. The community rightly gets disturbed. The cry for justice becomes louder and warrants immediate remedial measures. This <ORG> has in a large number of cases expressed concern at the atrocities perpetuated by the protectors of law. Justice <NAME>'s observation which have become classic are in following immortal words:

"Government as the omnipotent and omnipresent teacher teaches the whole people by its example, if the Government becomes a law breaker, it breeds contempt for law, it invites every man to become a law into himself". (in (1928) 277 U.S. 438, quoted in (1961) 367 U.S. 643 at 659).

The diabolic recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new and unwarranted peril because guardians of law destroy the human rights by custodial violence and torture and invariably resulting in death. The vulnerability of human rights assumes a traumatic torture when functionaries of the <ORG> whose paramount duty is to protect the citizens and not to commit gruesome offences against them, in reality perpetrate them. The concern which was shown in <NAME> case (supra) more than two decades back seems to have fallen to leaf ears and the situation does not seem to be showing any noticeable change. The anguish expressed in <CITATION> . (AIR 1990 SC 709), <CITATION> (1992 (3) SCC

249), <CITATION> . (AIR 1993 SC 1960), <NAME> v. State of Bihar and Anr. (1994 Supp. (3) SCC 100), <CITATION> . and <NAME>. (1995 (3) SCC 600), <CITATION> . (1995(3) SCC

702), <CITATION> . (1995 (4) SCC 262) and by now celebrated decision in <CITATION> 1997 (1) SC 1) seems to have caused not even any softening attitude to the inhuman approach in dealing with persons in custody.

Rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues  and the present case is an apt illustration  as to how one after the other police witnesses feigned ignorance about the whole matter.

The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact-situation and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system suspect and vulnerable. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach at times of the courts as well because it reinforces the belief in the mind of the police that no harm would come to them if one prisoner dies in the lock-up because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens recognized by the Indian Constitution and is an affront to human dignity. Police excesses and the mal-treatment of detainees/under-trial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in 'Khaki' to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady of the very fence eating the crops, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading, towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of judiciary itself, which if it happens will be a sad day, for any one to reckon with.

Though Sections 330 and 331 of the Indian Penal Code, 1860 (for short the ' IPC ') make punishable those persons who cause hurt for the purpose of extorting the confession by making the offence punishable with sentence up to 10 years of imprisonment, but the convictions, as experience shows from track record have been very few compared to the considerable increase of such onslaught because the atrocities within the precincts of the police station are often left without much traces or any ocular or other direct evidence to prove as to who the offenders are. Disturbed by this situation <ORG> in its 113th Report recommended amendments to the Indian Evidence Act , 1872 (in short the ' Evidence Act ') so as to provide that in the prosecution of a police officer for an alleged offence of having caused bodily injuries to a person while in police custody, if there is evidence that the injury was caused during the period when the person was in the police custody, the court may presume that the injury was caused by the police officer having the custody of that person during that period unless the police officer proves to the contrary. The onus to prove the contrary must be discharged by the police official concerned. Keeping in view the dehumanizing aspect of the crime, the flagrant violation of the fundamental rights of the victim of the crime and the growing rise in the crimes of this type, where only a few come to light and others don't, the Government and the legislature must give serious thought to the recommendation of <ORG> and bring about appropriate changes in the law not only to curb the custodial crime but also to see that the custodial crime does not go unpunished. The courts are also required to have a change in their outlook approach, appreciation and attitude, particularly in cases involving custodial crimes and they should exhibit more sensitivity and adopt a realistic rather than a narrow technical approach, while dealing with the cases of custodial crime so that as far as possible within their powers, the truth is found and guilty should not escape so that the victim of the crime has the satisfaction that ultimately the majesty of law has prevailed.

But at the same time there seems to be disturbing trend of increase in cases where false accusations of custodial torture are made, trying to take advantage of the serious concern shown and the stern attitude reflected by the courts while dealing with custodial violence. It needs to be carefully examined whether the allegations of custodial violence are genuine or are sham attempts to gain undeserved benefit masquerading as victims of custodial violence. The case in hand is unique case in the sense that complainant filed a complaint alleging custodial torture while the accused alleged false implication because of oblique motives.

It is the duty of the police, when a crime is reported, to collect evidence to be placed during trial to arrive at the truth. That certainly would not include torturing a person, be he an accused or a witness to extract information. The duty should be done within four corners of law. Law enforcers can not take law into their hands in the name of collecting evidence.

Facts of the present case as unfolded by prosecution during trial are as follows:

On the night intervening 19th and 20th June, 1984 to extort a confession from one <NAME> (hereinafter referred to as the 'deceased'), he was brought to the police station where he was beaten as a result of which he died and thereafter to remove the traces of the crime and conceal the acts, the dead body was thrown near a <ORG>. The accused persons, five in number, who were police officers of <ORG>, Shahjahanabad, Bhopal thus committed offences punishable under Sections 330 , 302 and 201 . In relation to a scooter theft, <NAME> and <NAME> (PW-12) were brought to <ORG>, Shahjahanabad. As name of deceased was disclosed by these persons, around 1.30 A.M. (after mid-night) the accused persons went to the house of deceased from where he was brought to the <ORG>. When the deceased was brought <NAME> (PW-14) had seen the accused persons. Thereafter to extort confession the deceased was badly beaten as a result of which he died. These accused-police officers forged the <NAME> report to conceal the crime by recording that they received an information that some person was lying in the <ORG> bed and the said person was intoxicated badly. As the witnesses and public at large raised hues and cries, the then Supdt. of Police, Bhopal wrote a letter to the District Magistrate and also sent a letter to the Inspector General of Police for getting the matter investigated through some independent agency. On basis of said letters, the District Magistrate got the matter enquired through <ORG>. Statements were recorded; the medical reports were obtained; documents were seized; panchnamas were prepared; and on completion of the investigation, the charge-sheet was filed in the concerned court. Each of the accused persons denied allegations. The trial was conducted by learned II Additional Sessions Judge, Bhopal. <ORG> after recording the evidence and hearing the parties found each of the accused persons guilty and sentenced them. <ORG> convicted each of the accused persons for offences punishable under Sections 304 Part I, 330 and 201 of the Indian Penal Code , 1860 (in short the ' IPC ') sentencing each to undergo RI for 7 years, 3 years and 2 years respectively. All the sentences were directed to run concurrently. Being aggrieved by the said judgment, conviction and sentence, the accused appellants have filed appeal before <ORG>.

The appellants filed appeals before <ORG>. By the impugned judgment <ORG> dismissed the appeals. During pendency of the present appeal before this Court, accused no.1 <NAME> expired and by order dated 2.10.2004 the appeal was held to have abated so far as he is concerned.

In support of the appeal, Mr. <NAME>, learned senior counsel submitted that the prosecution version as unfolded is not supported by any cogent and credible evidence. The prosecution version mainly rests on the evidence of <NAME> (PW-12) and <NAME> (PW-14). While the latter's version has been relied upon by the prosecution to contend that he had witnessed the deceased being taken away by the police officers, PW-12 on the other hand claimed to have witnessed beatings given by the accused persons to the deceased. It is pointed out that the medical evidence tendered by Dr. <NAME> (PW-16) clearly rules out time of beatings as claimed to have been witnessed by <NAME> (PW-12). His evidence is clearly to the effect that the deceased was suffering from T.B. and one lung was totally damaged. Taking into account the quantity of liquor found in his stomach, the time of death was fixed about 4 hours before post-mortem which started around 1.00 p.m. on 20.6.1984. His evidence is also to the effect that all the injuries were not of the same time; some were about 4 hours old and the others were 12 hours old and some were one or two days old. <NAME> (PW-12) is a liar as is evident from his testimony. He has given different version as to when he was arrested. Though he claimed that he was also beaten along with one <NAME> who was not examined, he did not make any grievance before the Magistrate when he was produced after his arrest. He gave varying dates so far his date of arrest is concerned. At one place it was stated to be 20.6.1984 whereas on another place it was stated to be 23.6.1984. Though he claimed that he was aware of the names of the accused persons, he did not mention it in his statement given during investigation. No explanation has been offered for it. He was not acquainted with the accused persons. Similarly, <NAME> (PW-14) claimed to have seen the accused persons. He identified them for the first time in Court. In his cross-examination he had accepted that he did not give the physical description of the accused persons. He clearly admitted that he could not have given the description because he had not seen them on the date of alleged date of occurrence. Therefore, the <ORG> below in the absence of any test identification parade should not have placed reliance on their evidence. In any event, when <NAME> (PW-14) accepted that he had not seen the accused persons the test identification parade would not have also improved the situation. He had categorically stated that the deceased was wearing a janghia when he was taken by the police. Doctor (PW-16) who conducted the post-mortem found that the deceased was fully dressed with pant and shirt. Therefore, it was submitted that the conviction as recorded by <ORG> and affirmed by <ORG> is unsustainable.

In response, Mr. <NAME>, learned counsel appearing for the respondent-State submitted that as is well-known, in case of custodial death, it is very difficult to have flawless evidence. The evidence of <NAME> (PW-12) is cogent and credible as found by the <ORG> below. Even though there are some minor flaws here and there, they do not affect credibility of the prosecution version. Evidence of <NAME> (PW-14) has been corroborated by the evidence of other witnesses. The medical evidence which is hypothetical in nature should not be given undue importance by-passing eye-witness's version. Merely because <NAME> has not been examined that does not render the prosecution version vulnerable as claimed by the accused-appellants. It is pointed out that in order to hide actual state of affairs a thoroughly misconceived plea that police received information about somebody lying injured near Nala was made out. This plea is also falsified when the evidence of doctor is noted. Dr. <NAME> (PW-11) has categorically stated that the body of the deceased was brought to the hospital around 8.15 a.m. by one police constable <NAME> of <ORG> and accused <NAME>. They told him that the deceased had come to the police station in a very bad stage and with much difficulty he had told his name and thereafter fallen down unconscious. It was further stated that they took him to the emergency ward, where he was declared dead. In the examination under Section 313 of the Code the accused-appellant <NAME> has taken the similar stand. This is clearly falsified by the defence version and evidence that police officers had gone to the spot on hearing that somebody was lying injured there. Therefore, it was submitted that <ORG> and <ORG> were justified in finding the accused-appellants guilty.

The evidence of <NAME> (PW-12) and <NAME> (PW-14) relate to separate facets of the incident. The latter speaks about the accused- appellants having taken the deceased along with them after mid-night of 19th June, 1984. <NAME> (PW-12) spoke of the assaults made inside the police station. Admittedly there was no test identification parade.

As was observed by this Court in <CITATION> . (1971 (2) SCC 75) identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. ( <CITATION> (1973 (2) SCC 406). The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Evidence Act . It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.

It is trite to say that the substantive evidence is the evidence of identification in <ORG>. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this <ORG>. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in <ORG>. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in <ORG> as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the <ORG> is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in <ORG>. The weight to be attached to such identification should be a matter for the <ORG>s of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. ( <CITATION> (AIR 1958 SC 350), <CITATION> (AIR 1960 SC 1340), <CITATION> . (AIR 1970 SC 1321) and <CITATION> (AIR 1972 SC 102).

<CITATION> ), the submission that absence of test identification parade in all cases is fatal, was repelled by this Court after exhaustive considerations of the authorities on the subject. That was a case where the witnesses had seen the accused over a period of time. <ORG> had found that the witnesses were independent witnesses having no affinity with deceased and entertained no animosity towards the appellant. They had claimed to have known the appellants for the last 6-7 years as they had been frequently visiting the town of Bewar. This Court noticed the observations in an earlier unreported decision of this Court in <NAME> v. The State of Rajasthan (Criminal Appeal No. 92 of 1956 decided on January 15, 1957), wherein it was observed :-

"It is also the defence case that <NAME> did not know the appellant. But on a reading of the evidence of P.W. 7 it seems to us clear that <NAME> knew the appellant by sight. Though he made a mistake about his name by referring to him as <NAME>, it was within the knowledge of <NAME> that the appellant was a brother of <NAME> and he identified him as such. These circumstances are quite enough to show that the absence of the identification parade would not vitiate the evidence. A person who is well-known by sight as the brother of <NAME>, even before the commission of the occurrence, need not be put before an identification parade in order to be marked out. We do not think that there is any justification for the contention that the absence of the identification parade or a mistake made as to his name, would be necessarily fatal to the prosecution case in the circumstances."

The <ORG> concluded:

"It seems to us that it has been clearly laid down by this Court, in <NAME> v. The State of Rajasthan (supra) (AIR Cri LJ), that the absence of test identification in all cases is not fatal and if the accused person is well-known by sight it would be waste of time to put him up for identification. Of course if the prosecution fails to hold an identification on the plea that the witnesses already knew the accused well and it transpires in the course of the trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case."

<CITATION> (1975) 4 SCC

480), though a test identification parade was not held, this Court upheld the conviction on the basis of the identification in Court corroborated by other circumstantial evidence. In that case it was found that the appellant and one <NAME> were absent at the time of roll call and when they were arrested on the night of 16th December, 1971 their rifles smelt of fresh gunpowder and that the empty cartridge case which was found at the scene of offence bore distinctive markings showing that the bullet which killed the deceased was fired from the rifle of the appellant. Noticing these circumstances this Court held:- "In view of this corroborative evidence we find no substance in the argument urged on behalf of the appellant that the Investigating Officer ought to have held an identification parade and that the failure of <NAME> to mention the names of the two accused to the neighbours who came to the scene immediately after the occurrence shows that his story cannot be true. As observed by this Court in <CITATION> . (AIR 1971 SC 363) absence of test identification is not necessarily fatal. The fact that <NAME> did not disclose the names of the two accused to the villages only shows that the accused were not previously known to him and the story that the accused referred to each other by their respective names during the course of the incident contains an element of exaggeration. The case does not rest on the evidence of <NAME> alone and the corroborative circumstances to which we have referred to above lend enough assurance to the implication of the appellant."

It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in <ORG> where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in <ORG>.

<CITATION> ) this Court upheld the conviction of the appellant even when the witness while deposing in Court did not identify the accused out of fear, though he had identified him in the test identification parade. This Court noticed the observations of the trial Judge who had recorded his remarks about the demeanour that the witness perhaps was afraid of the accused as he was trembling at the stare of <NAME> -accused. This Court also relied upon the evidence of the Magistrate, PW-7 who had conducted the test identification parade in which the witness had identified the appellant. This Court found, that in the circumstances if the Courts below had convicted the appellant, there was no reason to interfere.

<CITATION> (1995 Supp (1) SCC 80), this Court held that it is well settled that substantive evidence of the witness is his evidence in the Court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after his arrest is of great importance because it furnishes an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in Court at the trial. From this point of view it is a matter of great importance, both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused. It is in adopting this course alone that justice and fair play can be assured both to the accused as well as to the prosecution. Thereafter this Court observed:- "But the position may be different when the accused or a culprit who stands trial had been seen not once but for quite a number of times at different point of time and places which fact may do away with the necessity of a TI parade."

<CITATION> (1979 (1) SCC

31), this Court observed that the evidence of identification becomes stronger if the witness has an opportunity of seeing the accused not for a few minutes but for some length of time, in broad daylight, when he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes. In <NAME> and others v. State of Gujarat (2000 (1) SCC 358) after considering the earlier decisions this Court observed:-

"It becomes at once clear that the aforesaid observations were made in the light of the peculiar facts and circumstances wherein the police is said to have given the names of the accused to the witnesses. Under these circumstances, identification of such a named accused only in the <ORG> when the accused was not known earlier to the witness had to be treated as valueless. The said decision, in turn, relied upon an earlier decision of this <ORG> in the case of <ORG> (Delhi <ORG>.) v. <NAME> (AIR 1980 SC 1382) wherein also <NAME>, J. speaking for a three-Judge Bench made similar observations in this regard. In that case the evidence of the witness in the <ORG> and his identifying the accused only in the <ORG> without previous identification parade was found to be a valueless exercise. The observations made therein were confined to the nature of the evidence deposed to by the said eye-

witnesses. It, therefore, cannot be held, as tried to be submitted by learned Counsel for the appellants, that in the absence of a test identification parade, the evidence of an eye-

witness identifying the accused would become inadmissible or totally useless; whether the evidence deserves any credence or not would always depend on the facts and circumstances of each case. It is, of course, true as submitted by learned Counsel for the appellants that the later decisions of this <ORG> in the case of <CITATION> (AIR 2000 SC 160) and <CITATION> (AIR 1999 SC 3916), had not considered the aforesaid three-Judge Bench decisions of this <ORG>. However, in our view, the ratio of the aforesaid later decisions of this <ORG> cannot be said to be running counter to what is decided by the earlier three-Judge Bench judgments on the facts and circumstances examined by the <ORG> while rendering these decisions. But even assuming as submitted by learned Counsel for the appellants that the evidence of, these two injured witnesses i.e. <NAME> and <NAME> identifying the accused in the <ORG> may be treated to be of no assistance to the prosecution, the fact remains that these eye-witnesses were seriously injured and they could have easily seen the faces of the persons assaulting them and their appearance and identity would well within imprinted in their minds especially when they were assaulted in broad daylight. They could not be said to be interested in roping in innocent persons by shielding the real accused who had assaulted them."

These aspects were recently highlighted in <CITATION> . (2003 (5) SCC 746).

Test identification parade would be of no consequence in view of <NAME>'s (PW-14) evidence that he did not know physical description of the accused-appellants as he had not seen them on the date of occurrence. What remains is the evidence of <NAME> (PW-12).

It was contended that the police officers had assaulted the witness (PW-12) for a pretty long time and physical appearance and special features had been imprinted in the mind of the witness and merely because no test identification parade was held that is of no consequence. This plea has to be examined in the light of evidence of <NAME> (PW-12). His evidence is full of unexplained contradictions. At one place he says he was arrested on 20th June, 1984, at another place he says he was arrested on 23rd June, 1984. He claimed that from 20th June till 22nd June, 1984 he was in police custody. In cross- examination it was accepted that it was not so because he was taken to U.P. on 21st and 22nd June, 1984. In another vital improvement in his statement, he claimed that he knew the names of all the accused persons by 20th June, 1984 itself. Significantly, the names of accused persons are not stated by him when he was examined by the police. No explanation has been offered as to why he did not tell the names. This witness claimed that he had suffered severed injuries. He admitted that he had not made any grievance to the Magistrate before whom he was produced after his arrest. He also accepted that the alleged injuries were not bleeding. But his statement was that the blood on the floor was cleaned by the accused persons. It is further stated that the police took his signatures when his statement was recorded for the first time. Ext. D-3 was recorded on 26.6.1984 by which time he claimed to have known the names of all the accused persons. Ext. D-3 did not contain any signature. Therefore, the evidence of PW-12 and PW-14 are not sufficient to fasten guilt on the accused persons. But one significant aspect can not be lost sight of. That is the role of accused <NAME>. His definite plea was that the deceased was lying injured near the Nala and information to that effect was received at the police station. But his statement before Dr. <NAME> (PW-

1) was entirely different. The effect of a false stand being taken in case of custodial death was considered by this Court in <NAME> alias <CITATION> rep. by Inspector of Police, Chennai (AIR 2003 SC

The plea that the deceased had come to the police station in a severe condition and after telling his name has collapsed gets falsified by the categorical statement made by the accused in his statement under Section 313 of the Code to the effect that on receiving information where the deceased was lying unconscious in injured state. In this view of the matter, the case being one of custodial torture, accusations have been established so far as accused- appellant <NAME> alias <NAME> Chaudhury is concerned.

The residual question is what is the offence committed by him. The evidence of Dr. <NAME> (PW-16) is very relevant to decide the question. He found that the injuries were confined to the skin and upper level of the body. Grievous injuries were not found on vital parts of the body like head, liver, spleen, heart, lungs etc. The duration of the injuries were widely variant. The right lung of the deceased was TB affected. The combined effect of alcohol and the injuries shortened the period of death and resulted in a quicker death. That being so, the conviction in terms of Section 304 Part II  cannot be faulted. His appeal fails and is dismissed. He shall surrender to custody to serve remainder of his sentence. So far as other accused-appellants <NAME>, <NAME> and <NAME> are concerned, the prosecution has not been able to bring home the accusations. Therefore, their appeals deserve to be allowed which we direct. Their bail-bonds are discharged.

The appeal is accordingly disposed of.