<NAME>, J.

1. This is an action under the Fatal Accidents Act (Act 13 of 1855). On 26th June 1933, at about 10 a.m., one <NAME>, an assistant in <ORG> was crossing Bentinck Street from west to east in order to reach Weston Street when he was knocked down by the defendant's motor car which was being driven from south to north along Bentinck Street by the defendant's driver, <NAME> was seriously injured and died the same afternoon at <ORG>, death being due to fracture of the skull. On 4th August 1933, Mr. <NAME>, a Solicitor, under instructions from Mrs. <NAME> wrote to the defendant claiming Rupees 45,000 as loss and damages sustained by her by reason of her husband's death and threatening legal proceedings in default of payment. The claim was repudiated by Messrs. <ORG>, Solicitors, acting on behalf of the defendant, by their letter of 8th September 1933; but before that date and on 31st August 1933 this suit was filed. In the plaint, as it stood before the amendments to which I shall refer later, the only plaintiff was Mrs. <NAME>, the widow of <NAME>, and she sought to recover the sum of Rs. 45,000 or such other sum as may deem just to this <ORG> as damages, which she on her behalf assessed at Rs. 45,000. It was stated in the plaint that <NAME> had died leaving him surviving his widow, the plaintiff, and others who were not desirous of joining in the suit, and that the plaintiff had instituted the suit as representative of <NAME>, deceased, for the benefit of herself.

2. In para. 3 of the plaint it was alleged that the defendant's motor car No. 19912 under the charge and control of the defendant's servant was being driven from south to north along Bentinck Street rashly and negligently at a rapid and dangerous spaed and struck the said <NAME> down and ran over him. As a result, <NAME> received injuries, which are described in the plaint, and died. On 16th November 1933, Messrs. <NAME>, <ORG>, Solicitors for the defendant, asked for particulars: (1) as to all parties interested in the suit and the nature and extant of their interest, and (2) as to the damages alleged to have been sustained. On 24th November they sent a reminder and on 27th November 1933, they received a reply to their letter of 16th November from Mr. <NAME>, Solicitor for the plaintiff. In his letter Mr. <NAME> stated that the children of his client, Mrs. <NAME>, and her husband the late <NAME> were not desirous of joining in the suit as they had agreed that their mother should get all the compensation. As for the particulars of damages asked for, the letter stated that the plaintiff's sole means of support during her married life was provided by her husband from his monthly salary of Rs. 175 and a varying monthly amount as allowance, etc., the total from both sources being Rs. 200, or thereabouts, and that by the death of the deceased the plaintiff had been deprived of the whole of this amount and consequently of her means of livelihood. On 29th November Messrs. <NAME>, <ORG> wrote that the particulars furnished were not sufficient, and did not comply with the provisions of law and further that their client had been advised that the plaint did not disclose any cause of action and the suit as framed was not maintainable. In reply to the letter of 29th November, Mr. <NAME> wrote on 2nd December stating that <NAME> had left him surviving his widow and the children whose names were mentioned as his only heirs and legal representatives, and that the children had given up their rights and claims to the money that might be recovered from the defendant as costs, compensation or damages in favour of the plaintiff. The letter also gave particulars of the damages which the widow had sustained, making up the total of Rs. 45,000 claimed in the plaint.

3. In the meantime and on 22nd November 1933, the defendant had filed his written statement in which he took the point that the plaint did not disclose a cause of action, and that the suit as framed was not maintainable. He denied that his servant drove the ear negligently or was guilty of the alleged or any negligence or that the motor car was being driven at a rapid or dangerous speed. He alleged that the accident was not caused or occasioned by any of the acts complained of but arose from in evitable accident and alternatively there was contributory negligence on the part of <NAME>. Particulars were given of the alleged contributory negligence. It was submitted that the plaint did not disclose any damages which the plaintiff was entitled to claim and that the plaintiff was not entitled to recover Rs. 45,000 or any sum at all. On 4th December 1933, there was rather a curious letter written by Mr. <NAME> to the defendant's solicitors calling upon them to give discovery of "certain facts" of which ''your client is in possession" and "which are not personally known to my client." The letter went on to say:

For instance, your client is personally aware of the negligent and wrongful act which caused the death of my client's husband, and your written statement is not sufficiently clear to indicate properly the nature and extent and mode of the injury. And although your client was sitting in the car at the time of the said wrongful act, you have not disclosed all the facts connected with the said negligence and wrongful act of your client.

4. In his final address counsel for the defendant relied on this letter as indicating that the plaintiff had not made up her mind even on 4th December as to what case of negligence she was going to make and that up till then the only case of negligence was, as stated in para. 3 of the plaint, a case of the car having been driven at a dangerous speed. On 17th instant an application was made for an amendment of the plaint and as the defendant did not appear to oppose the application I made the order asked for. By the amendments made in the plaint we have now as plaintiffs, the widow and the four children of <NAME>. There is a new paragraph (para. 2-A) in which it has been alleged that the added plaintiffs had agreed with the original plaintiff that all damages and compensation recoverable from the defendant should be enjoyed by the original plaintiff and another paragraph (para. 7) stating that <NAME> left no will and that there is no executor or administrator of his estate. No additional written statement has been filed.

5. The hearing of this case started on the afternoon of Monday the 22nd and when counsel for the plaintiffs was opening his case he gave certain particulars of the negligence alleged in para. 3 of the plaint. Counsel for the defendant contended that in para. 3 of the plaint the only negligence alleged was that the car was being driven at a rapid and dangerous speed and that the plaintiffs should not be allowed to go into any other case of negligence, I thought it sight that I should allow the plaintiffs to go into the case made by counsel in his opening, and I directed counsel to furnish full particulars in writing of the negligence of which he complained and with regard to which he desired to lead evidence. The particulars have been furnished and are on the file. The following issues were submitted and accepted:

(1) Does the plaint disclose a cause of action? (2) Is the suit maintainable as framed? (3) Are the plaintiff's, representatives of <NAME>? (4) Are the plaintiffs entitled to maintain this suit? (6) Did the defendant's driver drive negligently in the following particulars: (a) Was he driving at a rapid or a dangerous speed? (b) Did he negligently fail to sound his born? (c) Did he negligently fail to heed a warning alleged to have been given by the deceased? (6) Was there contributory negligence as alleged in the written statement? (7) Was the collision due to inevitable accident? (8) Is the plaintiff, Mrs. <NAME>, entitled to recover the sum of Rs. 36,000 claimed in the particulars or Rs. 350 for funeral expenses or Rs. 200 or any other sum as expenses alleged to have been incurred in <ORG>.

6. The first witness examined on behalf of the plaintiffs was <NAME>, a Surveyor. He proved a plan (Ex. A) prepared by him of that portion of Bentinck Street where the accident took place, and its surroundings. The accuracy of this plan was challenged in certain particulars, but I do not think the alleged inaccuracies are very material. (After considering the evidence in the case his Lordship proceeded.) That concludes the oral evidence in the case and I might say at once that I much prefer the testimony of the defendant and his witnesses. I have come to the clear conclusion on the evidence before me that the plaintiffs have failed to make out their case. I find that the deceased while crossing the road while he was still on the western tram track had for some reason or other hesitated and either stepped back or made a backward movement and that in consequence the driver of the car who had intended to pass the deceased on the left, finding that he might not be able to pass the deceased on the left, swerved his car to the right in order to pass the deceased on the right but the deceased suddenly changed his mind and dashed forward with the result that he got in the way of the car and the car hit him and knocked him down, although the driver had put on the brakes. In my view the driver did the correct thing when he turned to the right and if the deceased had not dashed forward there would have been no accident at all. The spot where the man was knocked down and the position in which the car was found after the accident shows that the account given by the defendant and his witnesses is the correct account.

7. The fact that a good portion of the dead man's body was protruding beyond the bonnet of the car proves that at the time of the impact the car could not have been travelling at a great spaed. In my view, in the circumstances of the case the accident was unavoidable and no blame can attach to the driver of the car. I find that the accident was due to the conduct of the dead man. It is difficult to say why the deceased behaved in the way he did. The plaintiff's witness <NAME> stated that he spoke to the deceased while he was still on the western tram track and that the deceased spoke to <NAME>. It might be that at that time the deceased saw the car coming and he got flurried and could not decide as to whether he should move backward or forward. I am unable to accept the testimony of the witnesses <NAME> and <NAME>. They were obviously persons of limited intelligence and their ideas of speed and distances are vagua and uncertain. I cannot help doubting their capacity for proper or correct observation and it is difficult to say how much the witnesses had really seen of the accident. It is impossible to believe that the driver of the car made no effort whatsoever to avoid knocking the old man down. It is curious that though the accident took place in a busy street in Calcutta, and the evidence shows that there were a certain number of people about, the only two witnesses who should have come forward to give evidence in support of the plaintiff's case were two persons who had known the deceased for some considerable time and who are likely to let their sympathies with the deceased's family influence their minds. I find that the car was being driven at a reasonable and proper speed and not at a rapid or dangerous speed. I find that the driver did sound his horn when he saw the deceased and there was no warning given by the deceased. Issues 5, 6 and 7 are decided in favour of the defendant.

8. The plaintiff's suit therefore fails. I think however I should give my views with regard to the other issues raised. I shall take up the consideration of issues 1, 2, 3 and 4 together. It has been contended that the suit has not been properly framed as it has not been filed by the proper persons and has not been brought for the benefit of all the persons for whom it should have been brought. Counsel for the defendant argued that in the case of Europeans and Eurasians a suit under the Fatal Accidents Act (Act 13 of 1855) could only be brought by his executor or his administrator and the word "representative" in the Act had no application to such persons but was used only with reference to Hindus and Mahomedans. Reliance was placed by counsel for the plaintiffs on the case of <CITATION> (1905) 28 Mad 479, where this very point was considered and decided. In that case the argument advanced before me by learned counsel for the defendant had been advanced by the Advocate-General of Madras and was over-ruled by the Court, and the learned Judges held that the word "representative" in Act 13 of 1855 meant and included all or any of the persons for whose benefit a suit under the Act could be maintained. At one time I was inclined to doubt the correctness of the decision in the Madras case, but on further consideration I have definitely come to the conclusion that the Madras decision is right and I should follow it.

9. In my view the word "representative" in Act 13 of 1855 has a special meaning of its own. It has not the same meaning as "legal representative" in the Civil Procedure Code. It seems to me that the intention of the <ORG> was that in the absence of an executor or administrator any one or more of the persons for whose benefit the right of action was given should be deemed to be a "representative" of the deceased for the purpose of maintaining a suit under the Act. I do not think 1. (1905) 28 Mad 479 the word "representative" in the Act can be treated as mere surplusage in the case of Europeans and Eurasians. It could not have been intended that in such a case, where there is no executor or administrator, the persons for whose benefit the right of action was given should be without a remedy. I hold the plaintiffs are the representatives of the deceased within the meaning of the Act and are entitled to maintain the suit. I do not think there is much substance in the further objection made by counsel for the defendant that the suit had not been brought for the benefit of all the persons for whom it should have been brought.

10. On the plaint as amended it is clear that the children of the deceased are making no claim for damages at all and as all the persons for whose benefit the suit should have been brought are the plaintiffs before me and no further action can be brought in respect of the same subject matter of the complaint the purpose of the Act has been served and I hold that the plaint substantially complies with the requirements of the statute. I must not however be understood to say that I approve of the way in which the plaint in this suit has been drawn. In my view a plaint in a Suit under the Fatal Accidents Act has to be very carefully drawn and should give full particulars of the person or persons for whom or on whose behalf the action has been brought and of the nature of the claim in respect of which damages are sought to be recovered. I do not approve of the plaint in this suit but I cannot go to the extent of saying that it does not disclose a cause of action or that the plaint should not be entertained at all. Issue 8 deals with the question of damages recoverable by the plaintiffs in the event of their succeeding in the suit. In my opinion, the plaintiffs are not entitled to claim the funeral expenses or the expenses alleged to have been incurred in <ORG> and if I had been disposed to make a decree in the suit I would have awarded a sum of Rs. 2,000 as compensation to be paid to the plaintiff, Mrs. <NAME>. The suit will be dismissed with costs, including reserved costs.


JUDGMENT

1. This is an application, for leave to appeal to His Majesty in Council from the decision of this <ORG> is the case of <CITATION> for India in Council 8 Ind. Cas. 107 : 15 C.W.N. 87 : 12 C.L.J. 505. In that case, an interlocutory order of the Land Acquisition Judge was challenged on behalf of both the claimants and the Secretary of <ORG>. On behalf of the claimants, it was contended, first, chat the Land Acquisition Judge had no jurisdiction to review, at the instance of the Secretary of <ORG>, the award of the Collector in so far as it was not challenged by the claimants, to re-examine items not controverted by them, and to set aside the award partially on the ground that it was illegal and void, and, secondly, that the Land Acquisition Judge had no jurisdiction to make an order for discovery, and, at any rate, if he had such jurisdiction, fie had exercised it improperly in the case before him. On behalf of the Secretary of <ORG>, it was contended, first, that the Land Acquisition Judge had jurisdiction, which he had improperly refused to exercise, to review the award of the Collector, to cancel or modify it, or to remit the proceedings to him for reconsideration and, secondly, that if the Land Acquisition Judge did not possess such jurisdiction, this <ORG> had, at any rate, jurisdiction to take action of the same description, and that the circumstances of the case rendered the interference of this <ORG> essential in the interest of justice. In so far as the objections urged by the claimants were concerned, they were sustained by this <ORG>, while those taken on behalf of the Secretary of <ORG> were overruled. The result was that the Rule obtained by the Secretary of <ORG> was discharged, whilst that obtained by the claimants was made absolute. On behalf of the Secretary of <ORG>, the application now before us has been presented for leave to appeal against the order of this <ORG>, only in so far as thereby the Rule obtained by the claimants was made absolute. In so far as the order discharged the Rule obtained by the Secretary of <ORG> himself, its propriety has not been assailed. The application, as amended before us, purports to have been made both under Section 110 read with Clause (a) of Section 109 of the Civil Procedure Code of 1908 and Section 39 of the Letters Patent of the 2§th December, 1865. The application has been opposed by the claimants on the ground that the order in question is neither an order passed or made on appeal, nor a final order, within the meaning of Section 109 of the Code or Section 39 of the Letters Patent. Two questions, therefore, arise for consideration, namely first, whether an order, passed by this <ORG> in the exercise of its revisional jurisdiction under Section 115 of the Code of 1908 or of its power of superintendence under Section 15 of the High <ORG>s Act of 1361, may be deemed to be an order made or passed on appeal; and, secondly, whether the order in this case, in so far as it reversed the order of the <ORG> below for discovery and decided that it was beyond the competency of the Land Acquisition Judge to review certain portion of the award of the Collector, is a final order within the meaning of Section 109 of the Code of 1908 and Section 39 of the Letters Patent.

2. In so far as the first of these questions is concerned, it has been contended on behalf of the claimants that an order passed by this <ORG> in the exercise of its revisional jurisdiction, under Section 115 of the Code or of its powers of superintendence under Section 15 of the Charter Act, cannot rightly be regarded as passed on appeal. In support of this view, reliance has been placed upon the arrangement of the provisions of the Code of 1908 which distinguish between appellate and revisional jurisdiction; the principles, which regulate the former, are contained in Part VII, embracing Sections 96 to 112 , whereas the principles which underlie the latter are enunciated in Section 115 , contained in Part VIII. In answer to this argument, it has been contended on behalf of the Secretary of <ORG> that even if it be conceded that the arrangement of the Code lends some colour of apparent support to the contention of the claimants, the position becomes materially different when the provisions of Section 39 of the Letters Patent are examined. It has been argued, with considerable force, that the Letters Patent recognise an original (ordinary or extraordinary) jurisdiction and an appellate jurisdiction and that no basis for a suggestion as to the existence of a revisional jurisdiction as distinct from the appellate jurisdiction can be traced therein. After careful consideration of the arguments which have been addressed to us and of the judicial decisions to which we shall presently refer, we have arrived at the conclusion that the contention of the claimants, in so far as this particular point is concerned, cannot be sustained. Sections 11 to 18 of the Letters Patent treat of the Civil Jurisdiction of the High <ORG> including ordinary original, extraordinary original, and appellate jurisdiction, as well from original jurisdiction as from <ORG>s in the Provinces. No reference need be made for our present, purposes to Sections 32 to 35 , which treat of special jurisdiction in admiralty, testamentary, and matrimonial matters. It is sufficient to point out that Section 16 makes this <ORG> a <ORG> of Appeal from all the Civil <ORG>s of the Bengal Division of the Presidency of Fort William and from all other <ORG>s subject to its superintendence, and authorises the <ORG> to exercise appellate jurisdiction in such cases as are subject to appeal by virtue of any laws or regulations in force. It is reasonably plain, from an examination of these provisions, that a revisional jurisdiction is not contemplated apart from the appellate jurisdiction. Consequently, if we were to uphold the contention of the claimants that the expression an order made on appeal" in Section 39 does not include an order made in the exercise of revisional jurisdiction or of the powers of superintendence vested in the <ORG>, we might be driven to the position that the <ORG> cannot exercise any revisional jurisdiction at all as such jurisdiction is not expressly mentioned in the Letters Patent. An interpretation, which might lead to an inference of this description, ought not, if possible, to be accepted as well-founded. The question, therefore, arises whether the revisional jurisdiction is essentially distinct from the appellate jurisdiction, or whether it was intended by the Letters Patent to be included in the appellate jurisdiction. Now the term appeal" is defined in the Oxford Dictionary, Volume I, page 398, as the transference of a case from an inferior to a higher <ORG> or tribunal in the hope of reversing or modifying the decision of the former. In the Law Dictionary by <NAME>, the term "appeal" is defined as a proceeding taken to rectify an erroneous decision of a <ORG> by submitting the question to a higher <ORG> or <ORG> of appeal, and it is added that the term, therefore includes, in addition to the proceedings specifically so called, the cases stated for the opinion of <ORG> and the <ORG> of Crown Cases Reserved, and proceedings in error. In the Law Dictionary by <NAME>, an appeal is defined as the removal of a cause from a <ORG> of inferior to one of superior jurisdiction for the purpose of obtaining a review and re-trial, and it is explained that in its technical: sense it differs from a writ of error in this, that it subjects both the law and the facts to a review and retrial, while the latter is a Common Law process which removes matter of law only for re-examination; it is added, however, that the term "appeal" is used in a comprehensive sense so as to include both what is described technically as an appeal as also the Common Law writ of error; in other words, as put by Lord <NAME> in Attorney-General v. <NAME> 10 H.L.C. 704 : 10 Jur. 446 : 10 L.T. 434 the right of appeal is the right of entering a superior <ORG> and invoking its aid and interposition to redress the error of the <ORG> below; or as Mr. Justice <NAME> observes in <CITATION> 22 M. 68 at p. 80, the two things which are required to constitute appellate jurisdiction, are the existence of the relation of superior and inferior <ORG> and the power, on the part of the former, to review decisions of the latter. Both these elements are obviously essential, for instance an application before a Judge to discharge or vary an order made by himself is not an appeal but a re-hearing, because the relationship of superior and inferior <ORG> is absent; again, the order of the inferior <ORG> may not be at all liable to be challenged before a superior tribunal; the exercise of the appellate jurisdiction in such a case is impossible. The matter is put lucidly and concisely in the Commentary on American Jurisprudence by <NAME>, Volume II, page 1510, where it is pointed out that appellate procedure embraces two distinct modes of its exercise, namely, first, the record of the inferior tribunal may be brought to the superior tribunal and the decision reviewed, affirmed, reversed or modified; or, secondly, the superior tribunal may check the exercise or usurpation of power in inferior tribunals exercising judicial or quasi judicial power, or direct the mode in which they shall proceed without controlling the manner of doing that which is the result of judicial deliberation. Substantially to the same effect is the exposition given by <NAME> in his work on the Constitution, (Volume II, Sections 1760 to 1776 ), where that learned Jurist points out the distinction between the original and the appellate jurisdiction of a <ORG>, and observes that the characteristic of an appeal is the revision of a judicial proceeding of an inferior <ORG>, so that the mode in which that power is] exercised is wholly immaterial. We are, therefore, unable to accept as well-founded the contention of the claimants that a narrow interpretation should be placed upon the expression made on appeal" in Section 39 of the Letters Patent, and its application excluded from all cases in which the order has been made in the exercise of revisional jurisdiction or the power of superintendence vested in the <ORG>. The view we take, is supported by the decision of this <ORG> in <CITATION> 21 W.R. 263. In that case, an application was made for leave to appeal to Her Majesty in Council against the decision of this <ORG> in <CITATION> 19 W.R. 227, where an order for reversal of a sale was set aside by this <ORG> in the exercise of its revisional jurisdiction and of its power of superintendence under the Charter Act. It was argued {that the order of this <ORG> was not passed on appeal; hut this contention was overruled by Sir <NAME>, C.J., and <NAME> and <NAME>, JJ. The principle of that decision applies with peculiar force to the circumstances of the present case. Here the parties invited the <ORG> below to decide a preliminary question as to the scope of the enquiry before it, as also the question of the right of the Secretary of <ORG> to obtain an order for discovery in aid of an investigation of the matters in controversy. In ordinary:course, the trial would have proceeded on the merits on the basis of the decision of the Land Acquisition Judge on these preliminary points, and the question of the legality of such decision would have formed the subject of consideration by this <ORG> in the course of any appeal that might be preferred at the instance of either party against the final decree. Both the parties, however, chose a different course. They invited this <ORG> to consider the propriety of the order in so far as it affected the interest of each. Consequently, if we look at the essence of the matter, we find that the parties have obtained a decision from this <ORG> upon these, points in advance as it were of the appeal against the final decree. The position is identical whenever this <ORG> in the exercise of its revisional jurisdiction or power of superintendence, affirms, reverses or modifies an interlocutory order of a subordinate <ORG>, the propriety of which in ordinary course would come up for consideration in an appeal against the final decree under Section 105 of the Code of 1908. Under such circumstances, the language of Section 39 of the Letters Patent, in our opinion, does not require to be unduly stretched to enable us to hold that the order, now sought to be impeached by way of appeal to His Majesty in Council, was made by this <ORG> on appeal. But it has been contended that the decision of this <ORG> in <CITATION> 21 W.R. 263 is open to criticism, and that its authority has been shaken by subsequent decisions, amongst which reference has been made to <CITATION> 30 C. 679 It is worthy of note, however, that when the case of <NAME> v. <NAME> 3 I.A. 230 : 26 W.R. 44 came to be heard by their Lordships of <ORG> no suggestion appears to have been made that leave had been granted by the High <ORG> improperly or erroneously. On the other hand the case of <CITATION> 30 C. 679 is clearly distinguishable It was there ruled that an older made by the High <ORG> rejecting an application to amend a decree passed on appeal, was not an order made on appeal within the meaning of Section 39 of the Letters Patent. This view is substantially in accord with the decision of <ORG> of this <ORG> in the cases of <NAME> v. <NAME> 6 W.R. Mis. 102 : B.L.R. Suppl. Vol. 585 and <NAME> v. <NAME> 10 W.R. 1 (F.B.) : 1 B.L.R. 1 (F.B.) where it was held that an order rejecting an application to review a judgement passed on appeal was not an order made on appeal within the meaning of Section 39 of the Letters Patent. This view may be defended on the ground that the order refusing an application for review, is an order made by the identical <ORG> which passed the order assailed; in other words, the first element essential to constitute appellate jurisdiction, namely, the existence of the relations of superior and inferior <ORG> is absent. Consequently, we need not express any opinion upon the question raised by Sir <NAME>, C.J. in <CITATION> 21 W.R. 263 as to the correctness of the earlier <ORG> decisions, and this is the only point upon which Sir <NAME>, C.J., in <CITATION> 30 C. 679, expressed is dissent from the view indicate d by Sir <NAME>. The case of <NAME> v. <NAME> 32 B. 108 : 9 Bom. L.R. 566 which followed <CITATION> 30 C. 679 is an authority merely for the proposition that an order refusing to admit an appeal after the period of limitation prescribed therefor, is not an order made on appeal; whether this view is defensible on principle and may be reconciled with the decision of <ORG> in <CITATION> 30 C. 309 : 30 I.A. 20 it is unnecessary to consider for our present purposes; possibly the actual decision in the case before the learned judges of the Bombay High <ORG> may be supported on the ground that such an order is not a judgment at all as ruled in <NAME> v. <NAME> 33 C. 1323 : 3 C.L.J. 545 : 10 C.W.N. 986. We may also add that the case of <NAME> v. Gopal Chandra Neog 8 C.W.N. 296 is not inconsistent with the view we 'take, as the point in controversy there apparently was whether an order by this <ORG> in the exercise of its revisional jurisdiction allowing a party to sue in forma pauperis was a final judgment within the meaning of Section 39 of the Letters Patent. So far as we are able togather from the judgment of Sir <NAME>, C.J., the essence of the objection was rather that the order was not a final judgment, than that it was made otherwise than an appeal. Upon a review then of the principles we have explained as also of the authorities to which reference has been made, we are not prepared to give effect to the contention of the claimants in the case before us that the order, against which leave is sought to appeal to His Majesty in Council, is not an order "made on appeal" within the meaning of Section 39 of the Letters Patent. The first objection 'taken by them must consequently be overruled.

3. In so far as the second question raised by the claimants is concerned, it has been argued on their behalf that the order passed by this <ORG> is not a final order within the meaning of Section 109 of the Code of 1908 or Section 39 of the Letters Patent. In answer to this contention, it has been argued on behalf of the Secretary of <ORG> that the order is a final order, inasmuch as, so far as this <ORG> is concerned, the decision of the points in controversy has become final, and cannot be re-opened when an appeal is preferred against the ultimate decree of the Land Acquisition Judge. In support of this view, reliance has been placed upon the case of <NAME> v. <NAME> 10 C.L.J. 336 : 4 Ind. Cas. 459. Now it is obvious that whether a particular order is a final order for the purpose of the grant of leave to appeal to His Majesty in Council, must depend upon its nature and contents and its relation to the proceedings in which it lies been made. The order in the case before us, as has already been explained, deals with two questions raised in the <ORG> below, namely, first, whether the Land Acquisition Judge had jurisdiction upon the reference obtained by the claimants to consider the validity of the award of the Collector in so far as it is not challenged on their behalf; and, secondly, whether the Land Acquisition Judge had made a proper order for discovery against the claimants. It is, in our opinion, clear beyond the possibility of dispute that in so far as the order sought to be impeached deals with the question of the propriety of the order for discovery it is, in no sense, a final order within the meaning of Section 39 of the Letters Patent or of Section 109 of the Code of 1908 To use the language of their Lordships of <ORG> in <NAME> v. Collector of Jaunpur 28 I.A. 28 : 23 A. 220, the order merely directs procedure and is consequently not a final order. The only point, therefore, which deserves serious consideration, is whether the order, in so far as it decides that certain portions of the award of the Land Acquisition Collector are not embraced within the scope of the investigation by the Special Judge, is a final order for the purposes of appeal to His Majesty in Council Now, the expression "final order" is, not defined either in the Letters Patent or in the Code, and it may be conceded that the judicial interpretation of the phrase is, by no means, free from difficulty. But the effect of the decisions on the subject, some of which may not be easy to harmonise, is stated in the case of <NAME> v. <NAME> 10 C.L.J. 336 : 4 Ind. Cas. 459 where the earlier authorities are fully reviewed. The term "final order" denotes an order which finally decides any matter directly at issue in the case in respect of the rights of the parties. If the order decides in effect finally the cardinal point in the suit, if it decides an issue which goes to the foundation of the suit, and therefore is an order which can never, while the decision stands, be questioned again in the suit, it is final within the meaning of section, notwithstanding that there may be subordinate enquiries to be made. Questions of considerable nicety may arise in the attempt to apply this exposition to a concrete instance, but the case before us is, in our opinion reasonably free from difficulty. The Question which was raised before the Special Judge as a preliminary matter for decision and which at the invitation of the parties has been determined by this <ORG>, related to the precise scope of the enquiry before, the Land Acquisition Judge. There is no controversy that the Judge is entitled to investigate the propriety of the award of the Collector in so far as it is impeached by the claimants. The point of difference is whether he can at the instance of the Secretary of <ORG> include in this investigation the question of the propriety of that portion of the award with which the claimants are satisfied and for the examination of which they have not obtained a reference to the <ORG>. We are not prepared to hold that a decision of this question is a decision of the cardinal point in the suit or of an issue which goes to the foundation of the suit. It is manifest that whatever view may be taken of the question in controversy between the parties, the reference before the Judge cannot come to a termination without an investigation of the matters which admittedly form a legitimate subject of enquiry. The suggestion, which was made at one stage on behalf of the Secretary of <ORG>, that the order is final because in so far as this <ORG> is concerned the question decided by it cannot be re-examined upon the appeal against the final decree, is obviously untenable; if this wore the sole test of finality of an order, all orders interlocutory or otherwise, made by this <ORG>, would be final. Whether the character of finality can be rightly claimed in respect of an order, must be determined with reference to the precise relation in which it stands to the proceedings before the <ORG>. It may be conceded generally that a final order is one which determines the rights of the parties in the suit or proceeding or a distinct and definite branch of it, and reserves no further question or direction for future determination, except such as may be necessary to carry it into effect; but an order may be final though it does not determine the rights of the parties, if even without such determination it terminates the particular suit or proceeding. An interlocutory order, on the other hand, is generally one which does not dispose of the suit or proceeding but reserves some further question or direction for future determination. As a general rule, an order cannot be rightly considered final which settles part only of several issues of law or fact; in other words, if the order decides a question the solution of which cannot, whatever view may be taken of it, terminate the proceeding before the <ORG>, it cannot be appropriately called a final order. To take a concrete illustration, assume that a <ORG> under Rule II of Order XIV of the Code of 1908 tries an issue of law first, and subsequently proceeds to deal with the issues of fact, it cannot reasonably be contended that the decision of the issue of law is an adjudication which conclusively determines the right of the parties with regard to any of the matters in controversy within the meaning of Section 2 , Clause 2 of the Code, so as to attract the operation of Section 97 ; in other words, such a decision of the issue of law in a pending suit is not a conclusive determination or final order see Behari Lal Pundit v. <NAME> 18 C. 469 which was accepted as good law in Chanda Sala v. <NAME> 36 C. 422 at p. 430 9 C.L.J. 251 : 2 Ind. Cas. 338. This view is not opposed to that taken in the case of <CITATION> 15 C.W.N. 60 : 7 Ind. Cas. 622 where an order of remand by this <ORG>, setting aside the final decree in a suit for the winding up of a partnership business, and directing accounts to be taken on a new basis, was regarded as a final order. In that case, the judgment of this <ORG> on appeal determined the respective liability of the parties, and consequently, involved the decision of the issue which went to the foundation of the suit. On the other hand, the view we take is supported by the case of <CITATION> 31 A. 545 : 6 A.L.J. 786 : 6 M.L.T. 94 : 3 Ind. Cas. 967 in which it was ruled that an order of remand, which determines only a part of the case and leaves other matters still to be "determined, is not a final order within the meaning of Section 109 of the Code. The learned Judges quoted with approval the observation of <NAME>, L.J. in <ORG>, v. La Orange (1877) 3 C.P.D. 67 : 47 L.J.C.P. 3 : 37 L.T. 732 : 26 W.R. 25 that no order, judgment or other proceeding can be final which does not at once affect the status of the parties, for whichever side the decision may be given. Reference was also made, apparently with approval to the observation of <ORG> in <NAME> v. <NAME> (1891) 1 Q.B. 734 : 60 L.J.Q.B. 624 : 39 W.R. 547 that "an order is final only where it is made upon an application or other proceedings which must, whether such an application or other proceedings fail or succeed, determine the action; and conversely, an order is interlocutory where it cannot be affirmed that in either event the action will be determined." It is worthy of note, however, that the decision in this latter case has been doubted if not dissented from by Halsbury, L.C. in <NAME> v. <ORG> (1903) 1 K.B. 547 : 72 L.J.K.B. 271 : 51 W.R. 337 : 67 J.P. 397, where the decision of Sir <NAME>, M.R. in <NAME> v. <NAME> 9 Q.B.D. 621 : 46 L.T. 749 : 30 W.R. 740 was accepted as good law. The case nearest in point is that of <NAME> v. <NAME> of Paddington 5 Q.B.D. 368 : 49 L.J.Q.B. 264 : 42 L.T. 573 : 28 W.R. 588, where an order was treated as not final because it decided only one point in the case, of such a description that in whatever way that point might be decided, the case would have to go back for the decision of other matters in the action. To put the matter in another way, the decision was treated as interlocutory, because it could not, in any event, necessitate the entering of final judgment for either party--a position which is materially strengthened by the decision in In re <NAME> (1906) 2 K.B. 569 : 75 L.J.K.B. 769 : 95 L.T. 441 : 54 W.R. 620 : 22 T.L.R. 759. In the case before us, the decision of the preliminary question as to the precise scope of the enquiry by the Land Acquisition Judge could not possibly terminate the proceedings before him. Indeed the parties have subsequently obtained from this <ORG> an order by consent, that whatever view we may take of the nature of the order, they should be at liberty to ask the Special Judge to take evidence upon the questions which are admittedly within the s cope of his investigation. In this view, it is impossible for us to hold that the order is final order within the meaning of Section 109 of the Code or of Section 39 of the Letters Patent, although it determines only a question of law which affects one part alone of the case, and leaves other matters still to be determined. We may add that this conclusion is by no means to be regretted, because it is clearly inexpedient that leave to appeal should be granted against an order of this description. The inevitable result would be that the proceedings would be prolonged for a series of years, whereas if they were brought to a termination in the <ORG> below, the appeal against the final decree could be heard by this <ORG> in ordinary course, and the litigation might then proceed to His Majesty in Council ready and ripe for hearing on every point, at no very distant date. The second objection, therefore, must be decided in favour of the claimants.

4. The result is that the application is refused with costs ten gold mohurs. It is conceded that this order will govern the application in the other case, which also will, therefore, stand dismissed with costs ten gold mohurs.


PETITIONER: MUNICIPAL CORPORATION OF DELHI Vs. RESPONDENT: RAM KISHAN ROHTAGI AND OTHERS DATE OF JUDGMENT01/12/1982 BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA VENKATARAMIAH, E.S. (J) CITATION: 1983 AIR 67 1983 SCR (1) 884 1983 SCC (1) 1 1982 SCALE (2)1124 CITATOR INFO : RF 1983 SC 158 (1) D 1983 SC 288 (3) R 1983 SC 595 (13) RF 1986 SC 833 (46) R 1989 SC 1 (6) R 1992 SC1168 (9) ACT: Code of Criminal Procedure, 1973-ss. 4827 397(2) and 319 - Allegations in complaint not constituting offence against accused-Exercise of <ORG> inherent power under s. 482 to quash interlocutory order summoning accused not affected by s. 397(2)-Court has power under s. 319 to proceed against such accused on production of additional evidence. HEADNOTE: A Food Inspector of <ORG> visited tho premises of a shopkeeper and purchased a sample of toffees which, when analysed by Public Analyst, was found not to conform to the prescribed standards. In clause No. S of the complaint filed before the Magistrate it was stated: "That the accused No. 3 is tho Manager of accused No. 2 and accused No. 4 to 7 are the Directors of accused No. 2 and as such they were incharge of and responsible for the conduct of business of accused No. 2 at the time of sampling." Accused No. 2 was the Company which manufactured the toffees, accused No. 3 was its Manager and accused Nos. 4 to 7 were its Directors (respondents l to 5 here). The Magistrate passed an order summoning all the accused for being tried for violation of ss. 7 / 16 of the Prevention of Food Adulteration Act and that order was assailed before <ORG>. It was argued before <ORG> that the complaint did not attribute any criminal responsibility to the Directors inasmuch as there was no clear averment of the fact that the Directors were really incharge of the manufacture of toffees and were responsible for the conduct of business and that the words 'as such' in clause No. S of the complaint indicated that the complainant had merely presumed that the Directors of the Company must be guilty because they were holding a particular office. <ORG> accepted the argument and quashed the proceedings against the Directors as well as the Manager of the Company. In appeal, it was contended on behalf. Of the appellant that on the allegations made in the complaint, a clear case had been made out against all the respondents and <ORG> ought not to have quashed the proceedings on the ground that the complaint did not disclose any offence. Counsel for respondents contended that even taking the allegations of the complaint ex facie no case for trial had been made out. 885 Upholding the order of <ORG> in respect of quashing of proceedings against the Directors and allowing the appeal in respect of quashing of proceedings against the Manager, ^ HELD: Where the allegations set out in the complaint do not constitute any offence it is competent to <ORG> exercising its inherent jurisdiction under 8. 482 of the Code of Criminal Procedure, 1973 to quash the order passed by the Magistrate taking cognizance of the offence. It is true that s. 397(2) bars the jurisdiction of the court in respect of interlocutory orders. But s. 482 confers a separate and independent power on <ORG> alone to pass orders ex debito justitiae in cases where grave and substantial injustice has been done or where the process of the court has been seriously abused. It is not merely a rovisional power meant to be exercised against the orders passed by subordinate courts. Nothing in s. 397(2) limits or affects the inherent power under s. 482 . The scope, ambit and range of the power under s. 482 are quite different from those of the power conferred under s. 397 . It may be that in some cases there may be overlapping but such cases would be few and far between. It is well settled that the inherent powers under s. 482 can be exercised only when no other remedy is available to the litigant and Dot where a specific remedy is provided by the statute. It is clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. The test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then <ORG> would be justified in quashing the proceedings in the exercise of its powers under s. 482. [889 A-B, G; 887 C; 888 A-B; 887 G-H; 888 C-D; 890 <CITATION>  1 S.C.R. 749; Ra; <CITATION> .,  1 S.C.C. 43; Smt. Nagavva v. <NAME> and <ORG>.,  Suppl. S.C.R. 123; and <CITATION> .  2 S.C.R. 357, referred to. In the instant case, so far as the Manager of the Company was concerned, from the very nature of his duties it could be safely inferred that he would be vicariously liable for the offence as he must have been in the knowledge of the manufacture and sale of the disputed sample. So far as the Directors of the Company were concerned, there was nothing to show, apart from the presumption drawn by the complainant, that there was any act committed by them from which a reasonable inference could be drawn to the effect that they were also vicariously liable and <ORG> was right in holding that no case had been made out ex facie on the allegations made in the complaint. {891 D; 891 A; 891 E-F] 2. The mere fact that the proceedings have been quashed against the Directors will not prevent the court from exercising its discretion under s. 319 of the Code if it is fully satisfied that a case for taking cognizance against them is made out on the additional evidence led before it. Section 319 gives ample powers to any court to take cognizance and add any person not being an accused before it and try him along with the other accused. However, this being an extraordinary power conferred on the court, it should be used very sparingly and only if compelling reasons exist for doing so. [893 G; 893 G; 893 F] <NAME> and Anr. v. State of Punjab and Anr.  2 S.C.R. 306, referred to. 886 JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 701 of 1980.

Appeal by special leave from the Judgment and order dated the 5th March, 1980 of <ORG> in Criminal Revision No. 335 of 1974.

<NAME> for the Appellants.

<NAME>, Mrs. <NAME> and <NAME> for the Respondents.

<NAME>, <NAME>, <NAME> and <NAME> for Respondents.

The Judgment of the Court was delivered by <NAME>, 1. This appeal by special leave is directed against a judgment dated March 5, 1980 of <ORG> quashing the proceedings taken against respondents Nos. 1 to S and arises in the following circumstances.

On March 25, 1974, one <NAME>, Food Inspector, <ORG> visited premises No. 5171, Basant Road, Delhi where <NAME> had kept for sale 'Morton Toffees'. The said Inspector after purchasing the sample of the article sent it to the Public Analyst who opined that the said sample did not conform to the standards prescribed for toffees. The toffees were manufactured by <ORG> Upper Ganges Sugar Mills. Respondent No. 1 (<NAME>) was the Manager of the company and Respondent Nos. 2 to 5 were the Directors of the Company, including the company also.

A complaint was filed before the Metropolitan Magistrate who summoned all the respondents for being tried for violating the provisions of the Prevention of Food Adulteration Act (hereinafter referred to as the 'Acts). The said complaint was filed by the Assistant Municipal Prosecutor in the court of Metropolitan Magistrate, Delhi against the accused for having committed offences under sections 7 / 16 of the Act.

The only point canvassed before us was that on the allegations made in the complaint, a clear case was made out against all the respondents and <ORG> ought not to have quashed the proceedings on the ground that the complaint did not disclose any offence. Before going through the relevant part of the complaint, it mag be necessary to say a few words about the law on the subject.

After the coming into force of the Code of Criminal Procedure, B 1973 (hereinafter referred to as the 'present Code'), there was a serious divergence of judicial opinion on the question as to whether where a power is exercised under section 397 of the present Code, <ORG> could exercise those very powers under section 482 of the present Code. It is true that s. 397 (2) clearly bars the jurisdiction of the <ORG> in respect of interlocutory orders passed in appeal, enquiry or other proceedings. The matter is, however, no longer res integra as the entire controversy has been set at rest by a decision of this <ORG> in <CITATION> (1) where this <ORG> pointed out that s. 482 of the present Code had a different parameter and was a provision independent of s. 397(2) . This <ORG> further held that while s. 397(2) applied to the exercise y of revisional powers of <ORG>, section 482 regulated the . inherent powers of the court to pass orders necessary in order to prevent the abuse of the process of the court. In this connection, <NAME>, J. speaking for the <ORG> observed as follows:-

"On a plain reading of section 482 , however, it would follow that nothing in the Code, which would include sub section (2) of section 397 also, "shall be deemed to limit or affect the inherent powers of <ORG>". But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers .. But in case the impugned order clearly brings about a situation which is an abuse of the process of the court or for the purpose of securing the ends of justice interference by <ORG> is absolutely necessary, then nothing contained in section 397(2) can limit or affect the exercise of the inherent power by <ORG>. But such cases would be few and far between. <ORG> must exercise the inherent power very sparingly."

It may be noticed that s. 482 of the present Code is the ad verbatim copy of s. 561A of the old Code. This provision confers a separate and independent power on <ORG> alone to pass orders ex debito justitiae in cases where grave and substantial injustice has been done or where the process of the <ORG> has been seriously abused. It is not merely a revisional power meant to be exercised against the orders passed by subordinate courts. It was under this section that in the old Code, <ORG>s used to quash the proceedings or expunge uncalled for remarks against witnesses or other persons or subordinate courts. Thus, the scope, ambit and range of s. 561A (which is now s. 482 ) is quite different from the powers conferred by the present Code under the provisions of s. 397 . It may be that in some cases there may be overlapping but such cases would be few and far between. It is well settled that the inherent powers under s. 482 of the present Code can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. Further, the power being an extraordinary one, it has to be exercised sparingly. If these considerations are kept in mind, there will be no inconsistency between sections 482 and 397(2) of the present Code.

The limits of the power under s. 482 were clearly defined by this Court in <CITATION> .(l) where <NAME> Observed as follows:-

"Even so, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code."

Another important consideration which is to be kept in mind is as to when <ORG> acting under the provisions of s. 482 should exercise the inherent power in so far as quashing of criminal q proceedings are concerned. This matter was gone into in greater detail in <CITATION> .(2) where the scope of ss. 202 and 204 of the present Code was consider ed and while laying down the guidelines and the grounds on which proceedings could be quashed this Court observed as follows:

"Thus, it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:

(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where <ORG> can quash Proceedings."

Same view was taken in a later decision of this Court in <CITATION> (l) where <NAME>, J. speaking for the Court observed as follows:-

"It is, now settled law that where the allegations set out in the complaint or the charge-sheet do not constitute any offence, it is competent to <ORG> exercising its inherent jurisdiction under section 482 of the Code of Criminal Procedure to quash the order passed by the Magistrate taking cognizance of the offence."

It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting any thing, if no offence is made out then <ORG> will be justified in quashing the proceedings in exercise of its powers under s. 482 of the present Code.

In the instant cases the argument of the appellant before us is that taking the complaint as a whole, it cannot be said that no offence is made out or that the facts mentioned in the complaint do not constitute any offence against the respondents or some of them. On the other hand, the counsel for the respondents submitted that even taking the allegations of the complaint ex facie no case for trial has been made out at all.

Before going to the complaint, we might state that it is common ground that the complaint clearly contains the allegations regarding the visit of the Inspector to the shop of respondent No. 6 (<NAME>) and that the sample taken by him, which was sent to the Public Analyst, was manufactured by <ORG>, Daryagang, Delhi having its registered office at Calcutta and that the Public Analyst found the samples to be adulterated. There is no dispute regarding these facts. The only point on which the contro- versy centres is as to whether or not on the allegations, the Manager as also the other respondents I to 5 committed any offence. The main clause of the complaint which is the subject matter of the dispute is clause No. S which may be extracted thus:

"5. That the accused No. 3 is the Manager, of accused No. 2 and accused No. 4 to 7 are the Directors of accused No. 2 and as such they were incharge of and responsible for the conduct of business of accused No. 2 at the time of a sampling."

According to this clause, accused No. 3 (<NAME>) who is respondent No. I in this appeal and accused Nos. 4-7 who are respondent Nos. 2 to 4, were the Directors of the company, respondent No. 5. So far as the Manager, respondent No. 1, is concerned it was not and could not be reasonably argued that no case is made out against him because from the very nature of his duties, it is manifest that he must be in the knowledge about the affairs of the sale and manufacture of the disputed sample. It was, however, contended that there is no allegation whatsoever against the Directors, respondent Nos. 2 to 4.

Reliance has been placed on the words 'as such' in order to argue that because the complaint does not attribute any criminal responsibility to accused Nos. 4 to 7 except that they were incharge of and responsible for the conduct of the business of the company. It is true that there is no clear-averment of the fact that the Directors were really incharge of the manufacture and responsible for the conduct of business but the words 'as such' indicate that the complainant has merely presumed that the Directors of the company must be guilty because they are holding a particular office. This argument found favour with <ORG> which quashed the proceedings against the Directors as also against the Manager, respondent No. 1.

So far as the Manager is concerned, we are satisfied that from the very nature of his duties it can be safely inferred that he would undoubtedly be vicariously liable for the offence; vicarious liability being an incident of an offence under the Act. So far as the Directors are concerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from the presumption drawn by the complainant, that there is any act committed by the Directors from which a reasonable inference can be drawn that they could also be vicariously liable. In these circumstances, therefore, we find ourselves in complete agreement with the argument of <ORG> that no case against the Directors (accused Nos 4 to 7) has been made out ex facie on the allegations made in the complaint and the proceedings against them were rightly quashed.

We, however, do not agree that even accused No. 3, respondent No. 1, who is Manager of the Company and therefore directly incharge of its affairs, could fall in the same category as the Directors. Hence, we would set aside that part of the judgment of <ORG> which quashes the proceedings against the Manager, respondent No. I (<NAME>).

Although we uphold the order of <ORG> we would like to state that there are ample provisions in the Code of Criminal Procedure, 1973 in which the Court can take cognizance against persons who have not been made accused and try them in the same manner along with the other accused. In the old Code, s. 351 contained a lacuna in the mode of taking cognizance if a new person was to be added as an accused. 1 he Law Commission in its 41st Report (para 24.81) adverted to this aspect of the law and s. 319 of the present Code gave full effect to the recommendation of <ORG> by removing the lacuna which was found to exist in s. 351 of the old Code. Section 319 as incorporated in the present Code may be extracted thus:-

"319. Power to proceed against other persons appearing to be guilty of offence.

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the enquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub-section (1) then-

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the <ORG> took cognizance of the offence upon which the inquiry or trial was commenced."

This provision gives ample powers to any court to take cognizance and add any person not being an accused before it and try him alongwith the other accused. This provision was also the subject matter of a decision by this <ORG> in <CITATION> .(1) where <NAME>, J., speaking for the <ORG> observed thus:-

"A plain reading of section 319 (1), which occurs in chapter XXIV dealing with general provisions as to inquiries and trials, clearly shows that it applies to all the Courts including <ORG> and as such <ORG> will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused."

In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the <ORG> can take cognizance against them and try them along with the other accused. But, we would hasten to add that this is really an extraordinary power which is conferred on the <ORG> and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the court concerned so that it may act according to law. We would, however, make it plain that the mere fact that the proceedings have been quashed against respondent Nos. 2 to S will not prevent the court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it.

For these reasons, therefore, we allow this appeal only to the extent that the order of <ORG> quashing the proceedings against the Manager (<NAME>), respondent No. 1, is hereby set aside and that of the Metropolitan Magistrate is restored. As regards the other respondents (Directors) the order of <ORG> stands and the appeal in respect of these respondents only will stand dismissed. An attested copy of this judgment be placed on the file of criminal appeal No. 749 of 1980.

H.L.C. Appeal partly allowed.


JUDGMENT <NAME> - <NAME> and <NAME> were partners in the firm of <NAME> and Co., Panruti. <NAME> submitted his returns for the assessment years 1947-48 to 1954-55 and was duly assessed. Likewise, <NAME> made his returns for the assessment years 1948-49 to è1954-55. The assessment of the incomes of these two persons during the relevant assessment years covered their partnership income in the above-said firm. The assessments were made in the status of resident and ordinarily resident.

In the course of the assessment proceedings for the assessment year 1956-57, the Income-tax Officer became aware that these assessees were non-residents and that they had income outside the taxable territories which if taken into account under the relevant provisions of the Indian Income-tax Act , would attract tax at a rate higher than that at which they had been assessed. Accordingly, he reopened the assessments of these two assessees for the said years and issued notices to them under section 34 of the Act. In the returns filed by the assessees in response to these notices, they declared their status as non-residents and furnished their incomes as they appeared in the original returns made by them. They objected to the proceedings under section 34 of the Act as illegal. The Income-tax Officer, however, assessed them to tax at the rates applicable to non-residents but on the income that arose or accrued in the taxable territories. Against these assessments, appeals were taken to the Appellate Assistant Commissioner, it being contended that section 34 of the Act did not authorise the assessment at the maximum rate, that the notices were invalid inasmuch as they did not contain the necessary particulars required to be stated therein and further that the provision of the Indian Income-tax Act imposing the liability to tax on a non-resident at the maximum rate was unconstitutional as offending article 14 of the Constitution of India. These contentions were overruled. One other contention that was raised was that in the case of <NAME>, there had been an earlier proceeding under section 34 of the Act in respect of the assessment years 1949-50 to 1951-52 and that the statute did not authorise a second proceeding under section 34 . This contention was also rejected.

A further appeal to the <ORG> also failed, the assessees being unable to convince the <ORG> of the sustainability of any of these above contentions.

Under section 66(1) of the Act, the assessees moved the <ORG> to refer certain questions of law for the consideration of this court, and the questions of law so referred ar :

"(1) Whether the provision of the Income-tax Act for the levy of maximum rate is not a denial of equality before the law within the meaning of article 14 of the Constitution of India and void under article 13 and the present assessment as a non-resident at the maximum rate is not, therefore, void?

(2) Whether the aforesaid reassessments under section 34 for all the assessment years 1947-48 to 1954-55 in the case of <NAME> and assessment years 1948-49 to 1954-55 in the case <NAME> are valid?"

We shall deal with the second question first. One of the grounds urged on behalf of the assessees is that the notice did not comply with the requirements of the section and furnished no information to the assessee of the particular reasons which led to the reopening of the assessments. It is claimed that the assessees were not put on notice on the basis of the reopening and that, ètherefore, the notice is bad in law and the proceedings stand vitiated. What is contended in this regard is that in the copy of the notice issued by the Income-tax Officer, the Income-tax Officer stated that he had reason to believe that the assessees income assessable to income-tax for the relevant assessment year had (a) escaped assessment, (b) been under-assessed, (c) been assessed at too low a rate, (d) been subject to excessive relief and (e) been the subject of computation of the excessive loss or depreciation allowance. He continued in the notice, "I, therefore, propose to reassess the said income less depreciation that has (a) escaped assessment; (b)..... etc.," and called upon the assessee to "deliver to me not later than or within 35 days of the receipt of the notice a return in the attached form of your total income and total world income assessable for the assessment years 1948-49." He also indicated that the notice was issued after "obtaining the necessary satisfaction" of the Commissioner of Income-tax, Madras. It will be noticed that all the clauses (a) to (e) referred to above cover the several aspects dealt with in section 34 of the Act by reason of which the Income-tax Officer is enabled to take proceedings under the provision for reassessing the income and the tax. In the present case, however, the contention of the department was that since the assessee is a non-resident having income outside the taxable territories also, he is liable to be taxed at the maximum rate or at a rate dependent upon his total world income under section 17 of the Act. If the assessee fails to furnish his total world income to enable the tax to be levied on the basis of a rate dependent upon such total world income, the Income-tax Officer is authorised to levy the tax at the maximum rate as provided by section 17 of the Indian Income-tax Act. Since the assessees had failed to disclose their status as non-residents, but had in their original returns indicated that they were residents of Panruti and failed also to furnish particulars of their incomes derived outside the taxable territories the tax had been levied at a rate relevant to the income disclosed in those returns, income that accrued or arose within the taxable territories only. Obviously, the rate was too low a rate within the meaning of section 34 of the Act and it was on this basis that the proceedings were launched by the Income-tax Officer. Mr. <NAME> for the assessee contends that the Income-tax Officer was bound to disclose in the notice issued by him the particular reason for the reopening of the assessments and whether the case requiring action fell with one or the other of the heads referred to. In the notice, however, beyond indicating that it was a notice under section 34 of the Indian Income-tax Act, nothing express was stated which would inform the assessees of the case that he had to meet. It is contended that section 34 requires that that should be done, and if that is not done, the notice is not a proper notice and the èproceedings stand wholly invalidated.

A perusal of the section, however, does not support this contention. The relevant requirements in so far as they are material to the present case are that the Income-tax Officer should have reason to believe that by reason of the failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for that year, the income, profits or gains chargeable to income-tax had escaped assessment for that year, or been under-assessed, or been assessed at too low a rate. If he has such reason, he is required to serve on the assessee a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of section 22 . It is clear, therefore, that when the Income-tax Officer honestly believes that the income, profits or gains have been assessed at too low a rate by reason of the failure of the assessee to disclose all material facts necessary for his assessment, the only notice that he is called upon to issue to the assessee is a notice of the description referred to in section 22 , sub-section (2). It does not even appear from the section that the Income-tax Officer should expressly state it to be a notice under section 34 of the Act. If it is a case where the assessee had already been assessed for a particular year, a subsequent notice issued calling upon him to comply with the requirements of section 22 , sub-section (2), would clearly indicate to the assessee that it was a case of reopening of the assessment. Even otherwise, if the assessee had not submitted his return and the assessment year had elapsed, even a notice issued for the first time by the Income-tax Officer under section 22(2) is one which comes within the scope of section 34 , for it would be a case where there had been a failure of the assessee to make a return of his income, and the income, profits or gains chargeable to income-tax had escaped assessment for that year. What all the section, therefore, requires is that the notice should indicate that it is a proceeding under section 34 of the Act, which to the knowledge of the assessee it would be, had there been an earlier assessment for that assessment year. It may also be specifically noticed that the requirements of a notice purporting to be the precursor of the reopening of the assessment is not in any way different from the requirements of a notice required to be issued under section 22(2) of the Act. In this provision, the notices which the Income-tax Officer is called upon to issue is to demand "a return, in the prescribed form and verified in the prescribed manner, setting forth (along with such other particulars as may be provided in the notice), his total income and total world income during the previous year." It follows, therefore, that a notice leading to the reopening of the assessment under section 34 is not any special kind of notice which requires any information to be furnished to the assessee as to the reasons for reopening. It may also be noticed that neither the Act nor the Rules provide for any special form of notice under section 34 . That is as it should be, èbecause, the section itself indicates the kind of notice that has to be issued to the assessee and that, as we have seen, is nothing more than a notice conformably to the requirements of section 22 , sub-section (2).

We are not satisfied also that beyond the fact that the Income-tax Officer purports to exercise his jurisdiction under section 34 of the Act and to reopen the assessment, it is necessary for the Income-tax Officer to inform the assessee of the particular reasons leading to the reopening of the assessment. It would suffice in our opinion if the notice merely stated that the Income-tax Officer believed that the case of the assessee required reopening of the assessment under section 34 of the Act and to indicate that he had complied with the requirements of the provision by obtaining the prior approval of the Commissioner of Income-tax and in terms of the section called upon the assessee to submit a return containing such particulars as section 22 , sub-section (2) requires. The conditions for reopening of the assessment are not the same as the contents of the notice to be issued to the assessee. The conditions requisite are merely that the Income-tax Officer should have reason to believe that one or the other of the grounds necessitating the revision of the assessment existed in the case. Which precise grounds operated on his mind and what reasons impelled him to come to that conclusion are not required to be intimated to the assessee. The reason is obvious. It may be that when the Income-tax Officer commences the proceedings under section 34 , he might have had reason to believe that a particular item of income had escaped to be included in the assessable income of the assessee. But having started the proceeding under section 34 , the Income-tax Officer is not, under the terms of the section, as it stands, confined only to that particular item. It may transpire in the course of the proceedings that excessive relief had been given to the assessee and it would be open to the Income-tax Officer to deal with that aspect of the matter also. The intendment behind the section is that the whole of the assessment is thrown open and even if the Income-tax Officers notice contained only one particular head for reopening the assessment, he is not incompetent to deal with cases of under-assessment or the like which may be disclosed as a result of such reopening.

Mr. <NAME> referred to <CITATION> . We are unable to gather anything from this decision which supports the contention at present raised with regard to the requirements of the notice. That was a case where the Income-tax Officer issued a notice under section 34 of the Act (as it stood then) for the purpose of raising the rate of tax on the grounds that the rate originally fixed was too low. The assessees demanded that the Income-tax Officer should reassess his income, that is to say, determine afresh the correct taxable income of the assessee. The argument was that the Income-tax Officer was bound to begin proceedings again as regards assessment and proceed as if there was an enquiry in respect not only of the portion which had èescaped assessment but of all other items also. That contention was repelled. But it may be noticed that even apart from not answering the particular contention now advanced, this decision related to the interpretation of section 34 as it stood prior to the amendment in 1939, when the section was far differently worded.

<CITATION> a similar question arose. The learned judges observe :

"The scheme of section 34 of the Act is that if the conditions of the main section are satisfied, a notice has to be issued to the assessee containing all or any of the requirements which may be included in a notice under sub-section (2) of section 22 . But before issuing the notice, the proviso requires that the officer should record his reasons for initiating action under section 34 and obtain the sanction of the Commissioner who must be satisfied that the action under section 34 was justified. There is no requirement in any of the provisions of the Act or any section laying down as a condition for initiation of the proceedings that the reasons which induced the Commissioner to accord sanction to proceed under section 34 must also be communicated to the assessee...... It is not intended by the proviso that the reasons should be communicated to the assessee."

The learned judges also observed that it was unnecessary for the notice to state whether the Income-tax Officer was limiting the assessment for the period of eight years or four years, that is to say, whether it was a case which the Income-tax Officer thought came within the scope of 34(1)(a) or 34(1)(b).

<CITATION> Court pointed out that section 34 is only a section authorising the issue of a notice, that is, a notice under section 22(2) , and that it is not necessary or imperative that a notice under section 34 should specify under which of the two clauses of the section, viz., clause (a) or clause (b), the notice was issued. The learned judges observed that "all that the section itself says is that the Income-tax Officer may serve on the assessee..... a notice under sub-section (2) of section 22 . The main notice to be issued is, therefore, a notice under section 22(2) of the Act and section 34 only authorises the issue of such a notice, in spite of there having been a previous assessment or inspite of the time for the issue of a notice in the normal way having expired. It is true that when answering a notice issued under the section, the assessee may take a plea of limitation, and for purposes of such a plea, it may be necessary for him to know whether his case is being treated as one under clause (a) or as one under clause (b). It appears to me, however, that whether the case is treated as coming under one clause or the other, will transpire in the course of the assessment proceedings, and it is neither required of the Income-tax Officer not is it necessary, that he should specify the clause in the notice itself. Even when a clause is specified, it is conceivably that when making the actual assessment, the Income-tax Officer may come to hold that it comes under the other clause........"

It seems to us that these decisions completely answer the èabove contention.

It has been mentioned earlier that in so far as <NAME> is concerned, there had been certain earlier proceedings under section 34 in connection with the assessment years 1949-50 to 1951-52. It is argued that there cannot be a second proceeding under section 34 . The argument is put somewhat in this manner. Section 23 authorises the making of an order of assessment in the normal course. The power to make such an assessment exhausts itself when once it is exercised. So also, it is claimed, the power to reopen an assessment should be deemed to be exhausted when resort to that provision has been had once. We are really unable to appreciate this argument. Section 34 was intended to deal with cases of escapement of income tax, broadly speaking. It may happen that the Income-tax Officer comes to know that a particular item of income had escaped assessment and take steps to bring that income to tax by way of proceedings under section 34 . If the underlying intendment of the section is to deal with cases of escaped income, we fail to see why the Income-tax Officer should be prevented from having resort to that provision when on a subsequent occasion he becomes aware that another item of income had also escaped assessment. The section could be resorted to only within the period of limitation prescribed and it can be invoked in our opinion on any number of occasions which justifies resort to it. The only limit upon the exercise of that power is that the proceeding should be within the period of limitation prescribed. <CITATION> , the court had before it a case where section 34 had been invoked on a second occasion in the case of the same assessee. The point, however, was not decided therein whether the reopening of an assessment could be effected on more than one occasion. The question came to be considered specifically by a single judge of <ORG> in <CITATION> . The learned judge observed that within the time limit specified in section 34 of the Indian Income-tax Act, there is no restriction as to the number of proceedings that can be taken to reopen the assessment by way of assessment or reassessment, computation or re-computation. We agree with this view of the learned judge. The same view was taken by <ORG> in <CITATION> . The question was very shortly disposed of with the observatio :

"A simple reading of the sub-section leaves no doubt that it places no limit to the number of notices that may be issued, so long as they are within the time limit specified in that section. There can be no restriction as to the number of proceedings that can be taken to reopen the assessment where it is found that any income of the assessee has for one reason or another escaped assessment."

Whatever arguments might be available to the assessee to claim that section 34 authorises only the reopening of an assessment and not the reopening of a reassessment stand obviated by the decision of <ORG> in <CITATION> , where their Lordships held that the word "assessment" is capable of bearing only a comprehensive meaning and would include reassessment. It follows that solely for the reason that in respect of the two assessment years there had been a reassessment of the assessees income by proceedings under section 34 does not bar the exercise of the power under section 34 of the Act in reopening such a reassessment.

On a question of fact, we may point out that the assessee was fully aware of the reason for the reopening of the assessment in this case. In the assessment order for the assessment year 1948-49, the Income-tax Officer states that when the assessee submitted a return in response to the notice under section 34 , he correctly declared his degree of residence as non-resident. While in the earlier returns filed he had not completed that part of the prescribed form showing the degree of residence, but by giving his address as <NAME> had left it to be inferred that he claimed to be a resident, in the subsequent return, he gave his degree of residence as non-resident. In the assessment order relating to 1947-48 also, the assessee filed a letter dated 15th November, 1956, in which he admitted that he was a permanent resident of Karaikal, that is to say, a non-resident, but at the same time questioned the validity of the proceedings as illegal and barred by limitation. There is no doubt, therefore, that the assessee was fully aware of the reasons that led to the reopening of the assessment.

We have next to consider whether the present case would fall within sub-clause (a) or (b) of section 34(1) . That would lead us to a consideration of the question whether the disclosure of the status of the assessee as a resident or non-resident is not a material fact necessary for his assessment. The law broadly stated imposes the liability to tax on the income of any assessee at a rate dependent on the total world income. In the particular case of a non-resident, who has income accruing or arising both within and without the taxable territories, the income arising without the taxable territories is brought to tax, but at a rate dependent upon his total world income. Leaving aside the question of the validity of section 17 of the Act, as the law stands, the fact whether a person is a resident or a non-resident is undoubtedly a material fact necessary for making a proper assessment upon him. The incidence of tax would vary and it is incumbent upon the assessee to make a disclosure of the particular fact, viz., that he is a resident or a non-resident. It is undoubtedly a material fact necessary for the assessment and it is indisputable that in the present case the assessee had failed to disclose this material fact in his return for the relevant assessment years. This is clearly a case that falls within the scope of section 34(1)(a) . It is argued by Mr. <NAME> in this regard that there has been no failure on the part of the assessee to disclose this material fact and that at the best it can only be regarded that in consequence of information which the Income-tax Officer came to possess, the assessment had èbeen made at too low a rate. It is alleged that the assessees might have thought that they fell into all the categories of resident, non-resident or resident but not ordinarily resident. This argument is wholly untenable. The factum of residence is a fact which is exclusively within the knowledge of the assessee and so long as the law differentiates the manner in which persons possessing the character of resident or non-resident are assessed, the precise qualification with regard to the residence is a matter which has to be disclosed by the assessee. There has undoubtedly been a failure on the part of the assessee to disclose the material fact. We must repel the argument that the case is one which comes under sub-clause (b).

The result is that the second question is answered in the affirmative and against the assessee.

It is next contended that the provision in the Income-tax Act levying tax at the maximum rate on a non-resident is violative of article 14 of the Constitution. We need not embark upon a discussion of the case law upon the scope of article 14. Suffice it to say courts have uniformly held that discrimination cannot be lightly inferred and that a classification of the subject-matter for legislation is permissible under the Constitution so long as that classification is based upon some real an substantial distinction and has reasonable relation to the object of the legislation. Having thus broadly stated the proposition, it should necessary follow that the classification of persons for the purpose of levying tax on their incomes on the basis of their status as residents and non-residents it undoubtedly a real one. But what is contended is that for the purpose of levy of tax, such classification and the imposition of a differential levy has no relation to the object of the taxing enactment. It is urged also that the legislature is not competent to tax the other income, that is to say, income which does not arise or accrue within the taxable territories in the case of a non-resident, and that being so, it must equally follow that there can be no lawful authority for the levy of tax on a non-resident at a higher rate dependent upon the extra-territorial income. In so far as a non-resident as a person who earns income within the taxable territories is concerned, undoubtedly a sufficient territorial connection is established between the person sought to be taxed and the country seeking to tax him. That would be sufficient to validate the levy. But it must be emphasised that such territorial connection must be real and the liability sought to be imposed must have a reasonable relation to that connection. It is also undoubted that a taxing enactment is entitled to levy differential rates of tax on different classes of income and to impose also different rates of tax. In so far as income derived from the taxable territory is concerned, it is competent to the Indian legislature to fix the rate of tax upon such income on the basis of any reasonable classification. We are unable to see why the basis of residence is not a valid criterion to be adopted in such a case. If, therefore, the classification as a resident and ènon-resident would be a proper classification for the purpose of levy of tax, it should equally be open to the legislature to vary the incidence of tax in so far as the two classes are concerned. In fact, the resident is liable to be taxed on his total world income, while a non-resident is liable to be taxed only on the territorial income but at a rate dependent on the total world income. We are not concerned with the question whether tax can be imposed on the non-resident in the same manner as the resident on the total world income. We are only dealing with the question whether a rate of tax dependent upon the classification of the assessee as resident or non-resident has a reasonable relation to the object of the legislation. We are unable to see any constitutional disability in this regard and we cannot agree that article 14 is in any way violated. The question is answered against the assessee.

The assessee will pay the costs of the department. Counsels fee Rs. 250.

Question answered against the assessee.