JUDGMENT <NAME> J.

1. <NAME>, <NAME> and <NAME> appeal from a judgment of a Civil and Sessions Judge of Banaras convicting them under Section 302, Penal Code , and sentencing the first to death and the others to transportation for life. The appellants live in village Thana and are said to be friends. The first two are Thakurs but no relationship exists between them, and the third is a Kayastha. <NAME>, mukhia of the village, is a collateral of <NAME> and has disputes with him over joint land. The disputes were referred for arbitration of a <ORG> consisting of five men. <NAME> claimed the right to nominate all the five panches himself but was made to agree that one Panch at least should be nominated by <NAME>. Accordingly <NAME> nominated four Panches one of whom was <NAME> while <NAME> nominated <NAME> deceased. There is a Gram Sudhar and <ORG> in the village of which <NAME> was the Vice-President and <NAME> the Secretary. <NAME> had previougly been a member of the <ORG> but was not a member at the time when the occurrence took place. He was, however, a very peace-loving educated man who would try to settle all differences between the villagers. He was respected for this by the whole village. The five Panchas met on 26-11-1948, to settle the disputes between <NAME> and <NAME> but did not succeed; on the other hand, there is evidence that some hot words were exchanged between <NAME> and two of the nominees of <NAME>. On the next day <NAME> and others cut away <NAME>'s paddy crop after beating him. <NAME> lodged a complaint against them on 1-12-1948 citing <NAME>, <NAME>, <NAME> and <NAME> and four others as his witnesses. Out of those only <NAME> and three of the others were actually examined as prosecution witnesses. (The complaint was dismissed after the murder of <NAME>.)

2. <NAME> was an autocrat in <ORG> and liked to do everything according to his desire. The public was dissatisfied with him on account of his method of working. Thus <NAME> was an eye sore to <NAME> and <NAME>. The third appellant <NAME> had no direct enmity with <NAME> but since he was a friend of <NAME> he also did not like <NAME>.

3. On 5-12-1948, at about 7 P. M. when there was moon in the sky, <NAME> and <NAME> went to the house of <NAME> and asked him to go to the house of <NAME> to settle the dispute between him and <NAME> about the cutting of the paddy crop. <NAME> was disinclined at first but was persuaded by <NAME> to go and so he accompanied them to the house of <NAME> which is at a distance of about seven houses from his own. On the way they passed by the house of <NAME> who accompanied them. Arriving at the door of <NAME>'s house they found <NAME> and <NAME> sitting on the Chabutra of a Nim tree just in front of <NAME>'s house. Below the Chabutra was a fire. <NAME>, <NAME>, <NAME> and <NAME> sat round the fire. <NAME>, mother of <NAME>, was at her door. <NAME> told <NAME> that he had brought him to have the matter about the cutting of the paddy crop compromised. <NAME> replied that he should return the paddy and the expenses of the complaint to <NAME> and then live peacefully with him. <NAME> did not give any reply to this suggestion. <NAME> went inside the house of <NAME> and came out after short time and sat down on the Chabutra again covering himself with a black cloth, described by two witnesses as a blanket and another as a cotton Chaddar. When <NAME> did not receive any reply from <NAME> he got up saying that it was no use waiting there. Others also got up ail the same time and <NAME> and <NAME> shouted that he should be struck. Immediately <NAME> threw off the cloth and plunged a knife into the abdomen of <NAME>, extracted it and ran away along with <NAME> and <NAME>. <NAME> fell down. The crime was witnessed not only by <NAME> and <NAME> but also by <NAME> and <NAME>. <NAME> was at that moment returning to his house from a pond after answering the call of nature while <NAME> was returning home after collecting arus leaves from a place behind the house of <NAME>. Both were witnesses of the instigation by two of the appellants and the stabbing by the third. <NAME> shouted as soon as he saw the stabbing and there was uproar also, hearing which <NAME> (younger brother of <NAME>), <NAME> (their uncle), <NAME>, <NAME> and <NAME> arrived there. <NAME> said to them that he had been stabbed by <NAME> on being instigated by <NAME> and <NAME>. <NAME> also arrived there and suggested that <NAME> should be taken to the police station which is less than a mile by foot path and a report be lodged there. But <NAME> who was in great pain said that he should be taken at once to the hospital in village Pindra which is about two miles from the village. So he was carried on a cot by <NAME> and others to the hospital where they arrived at about 8-30 P. m. Dr. <NAME>, the Medical Officer at the hospital, cleaned and dressed the wound in the abdomen and advised that <NAME> be taken at once to <ORG>, Banaras, about 18 miles away. <NAME> was then in senses but restless. <NAME> got a report of the occurrence scribed by <NAME> (of village Pindrai which is about a mile from the hospital) and took it to the police station which is about two miles from there while <NAME> was taken in a motor vehicle to Banaras. <NAME> handed over the written report at the police station at 10-30 P. M.

4. <NAME> reached Banaras in the latter part of the night and was admitted in <ORG>. As his condition was serious a Magistrate was sent for and he took down his dying declaration at 8:20 A.M. on 6th December. In this dying declaration <NAME> said that he was stabbed by <NAME> at the door of <NAME>. <NAME> died in the hospital on 8th December at 5 A. M. According to the Doctor the death was due to shock and haemorrhage resulting from the stab wound in the abdomen involving the stomach, the entrails and the mesentery. On the abdomen there was a liner incised wound 1 inch long.

5. The police reached the spot on 7th December for investigation. <NAME> was arrested at once and the other appellants were found absconding. <NAME> had run away to Bombay which he used to visit previously and was arrested there sometime before 19-12-1949. <NAME> surrendered himself in Court on 20-1-1949. Steps under Sections 87 and 88 , Criminal P.C., had been taken against both.

6. The prosecution relied upon the evidence of <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME> and <NAME>. The first three deposed that the occurrence took place in the manner stated above and that <NAME> stabbed <NAME> on being prompted by the other two appellants and that they all ran away together. All the witnesses except <NAME> stated that <NAME> informed his brother and others who arrived at the spot, that the crime was committed by <NAME> at the instigation of the other two. There is further the evidence of the Magistrate who proved the dying declaration of <NAME> made on 6th December. <NAME> gave evidence about the enmity between him and <NAME>, the setting up of the arbitration and the part played by <NAME> as his nominee in the <ORG>.

7. The names of <NAME>, <NAME>, and <NAME> are mentioned in the report lodged by <NAME>. There was no suspicious delay in the lodging of the report; it was quite natural for <NAME> and <NAME> to carry <NAME> first to the hospital where his wound could be attended to and then think of going to the police station to lodge a report. There is absolutely nothing suspicious in <NAME>'s getting the report scribed by <NAME> even if he himself was literate. In the report it was written at first that the occurrence took place at 5 P. M. but the figure '5' was altered to the figure '7' in different ink. The evidence of <NAME> and <NAME> is that the correction was done at the hospital when the report was read over to <NAME> but this does not appear to be a fact. Had the correction been made there and then it would have been in the same ink. On the other hand, the correction seems to have been made at the police station. I do not know what advantage the prosecution would have got by shifting the time of occurrence from 5 P. M. to 7 P. M. It is nobody's case that the occurrence took place at 5 P. M. and not at 7 P. M. Therefore putting down the time as 5 P. M. originally must have been an innocent mistake which was probably detected when the written report was handed over at the police station. <NAME> has his house quite near <NAME> and was a most likely witness of the occurrence. The other two witnesses of the actual occurrence happened to be passing by the house of <NAME> only by chance. This fact may excite our suspicion but is not alone enough for a finding that the evidence given by them is false. <NAME> was cross examined on behalf of the accused with a view to show that <NAME> could obtain arus leaves from a place nearer his house than the place behind <NAME> house. This cross examination was against the law because no evidence could be produced by the accused to contradict the evidence of Sheikh <NAME> about the reason for his being at the place of occurrence at the time when it took place. Obtaining matter through cross examination of another witness is same as obtaining it from examination in chief of own witness. In this respect the law makes no distinction between matter brought on record through examination-in-chief of own witness and that brought on record through cross-examination of a witness of the adversary. That evidence was not on a matter relevant to the issue. Whether arus leaves could be found at another place or not was not a matter relevant to the issue. The law, as stated by <NAME> on Evidence, Edn 8 is :

"After a proper foundation has been laid in cross-examination (<NAME> v. <NAME>, ante, 468), a party may contradict his opponent's witnesses by independent evidence on all masters relevant to the issue, and in particular as to their previous contradictory statements." (at p. 471).

"A party may not, in general, impeach the credit of his opponent's witnesses by calling witnesses to contradict him on irrelevant matters, and his answers thereon will be conclusive." (p. 472).

Similar statement of law would be found in Taylor's Law of Evidence, paras. 1435 and 1438. He gives the reasons on which the rule is founded, in para. 1439; they are :

"First, that a witness cannot be expected to come prepared to defend, by independent proof, all the actions of his life; and next, that to admit contradictory evidence on such points would of necessity lead to inextricable confusion, by raising an almost endless series of collateral issues."

8. A case exactly similar to the present case is Piddington v. <ORG>, 63 C. l. r. 533. A person claiming to be an eye-witness of an accident explained that he happened to be at the spot because he was carrying a message from a bank to J. The opposite party attempted to produce evidence to prove that J had not operated upon his account with the bank on that day and that consequently the witness was lying when he said that he was carrying a message to J. <ORG> ruled out the evidence as inadmissible. It laid down that if a question in cross-examination affects only the credit of the witness and is not relevant to the matters actually in issue, the witness's answer cannot be contradicted by other evidence except in certain exceptional cases.

9. <NAME>, who was admittedly present at the spot, was not examined by the prosecution and it was argued that the effect of not examining him would be to raise the presumption that if he had been examined his evidence would have gone against the prosecution. It is the contention of the prosecution itself that his evidence would have gone against it and there is no sense in saying that this should be presumed. <NAME> was suspected by the prosecution of complicity in the crime. It is in the evidence that he was a nominee in the Panchayat of <NAME>, that he not only accompanied him to the house of <NAME> but also pressed the latter to go to the house of <NAME> where he was to meet his doom, and that he prevailed upon <NAME>, etc to cite him in the report as an eye-witness. It is also in the evidence that he acts the part of <NAME> in the village and that <NAME> gained popularity at his expense by composing differences among people. The prosecution cannot be blamed for harbouring a suspicion against him in these circumstances and for withholding him from the witness-box. It was not bound to put him in the witness-box even when it was not sure of his reliableness. After all, he was not an essential witness; he was only one more eye-witness of the occurrence. Had he been the only eye-witness and had the prosecution tried to prove its case by withholding him and relying upon circumstantial evidence, it could have been argued that withholding him would affect the prosecution adversely. When the evidence on the record itself suggests that <NAME> might not have given true evidence, that alone is a very good reason for the prosecution's not putting him in the witness box. That his evidence would go against it is one thing and that that evidence should be believed is another thing. All that can be presumed under Section 114 is that his evidence would go against the prosecution, but not that it would justly go against it or would be believed. The best evidence rule deals mainly with evidence of different kinds and not with the evidence of different witnesses. But even if it is applied to the evidence of different witnesses, it must first be established that <NAME> would have been the best eye witness. The circumstances mentioned above do not at all show that he would have been the best eye-witness. Lord <NAME>, delivering the judgment of <ORG> in <CITATION> , A. I. R. (23) 1936 P. C. 289, observed at p. 300 :

"They cannot, speaking generally, approve of an idea that a prosecution must call witnesses irrespective of considerations of number and of reliability, or that a prosecution ought to discharge the functions both of prosecution and defence. It is dots so confusion is very apt to result, and never is it more likely to result than if the prosecution calls witnesses and then proceeds almost automatically to discredit them by cross-examination. Witnesses essential to the unfolding of tie narrative on which the prosecution is based, must of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution."

<NAME> was not essential to the unfolding of the narrative on which the prosecution was based; that has been done by other witnesses. That the prosecution is not bound to put forward all witnesses named in the information report is settled since their Lordships' decision in <NAME> v. Attorney-General, 1944 ALL. L. J. 466.

"The prosecutor has a discretion as to what witnesses should be called for the prosecution, and the Court will not interfere with the exercise of that discretion, unless perhaps, it can be shown that the prosecutor has been influenced by some oblique motive."

(ibid, p. 469, per Lord <NAME>). These two decisions of their Lordships substantially modify the law laid down by a Bench of this Court in <CITATION> , 57 ALL. 267 at p. 276. I, therefore, attach no importance to the fact that the prosecution did not examine him as its witness.

10. At the same time, I cannot help feeling that the Sessions Judge himself should have examined him under Section 540 , Criminal P. C. A Sessions Judge is expected to try a criminal case intelligently and not leave everything in the hands of the Public Prosecutor and the defence counsel. It is his duty to find out whether the examination of any witness would be necessary in the interests of justice or not. He is bound to examine any witness whose evidence he considers essential in the interests of justice. He cannot evade this statutory responsibility by omitting to give all thought to the question whether the evidence of any witness left out by the parties is essential or not. It is remarked by <NAME>, at p. 466 that :

"On charges of homicide, and perhaps in other serious cases, witnesses who, though not so named, were present at the transaction, are sometimes called by the Judge for the furtherance of justice."

11. Besides the evidence of the three eyewitnesses the statements made by <NAME> himself on at least two occasions about his being stabbed by <NAME> are substantive evidence. It is not disputed that he was a truthful man on whose statement implicit reliance could be placed. He was not likely to accuse anybody falsely. He was in his senses when he made the dying declaration before the Magistrate in the hospital. He must have been in his senses immediately after the occurrence also and must have mentioned the names of his assailants to <NAME> and others who arrived on the spot on hearing of the crime. On both the occasions he stated that he was stabbed by <NAME> at the house of <NAME>.

12. It was contended that the prosecution witnesses are not independent. The main basis for this contention is that four of them were named by <NAME> in his complaint. They might have been on friendly terms with <NAME> and at his beck and call, but it does not follow that they are at the beck and call of <NAME> and <NAME>. Further, they are only four out of eight witnesses named by <NAME> and only one of them was actually examined. I am not prepared to say that they would give false evidence without any hesitation at the instance of the prosecution. Nothing could be said against <NAME> except that his uncle <NAME> also was a witness of <NAME> in that complaint. The relationship between <NAME> and <NAME> is immaterial. The relationship between a witness and the party examining him may show that the former is not an independent or impartial witness, but the relationship between two witnesses examined by a party does not lead to any inference that they are interested in the party. On 15-1-1948 <NAME> made a report of an offence under Sections 323 and 506 against <NAME> and <NAME>; these witnesses might have given evidence against him on account of it, but there is no certainty that they have given false evidence on account of it. The evidence given by the prosecution witnesses is quite consistent and probable. Nobody had touched the cloth that <NAME> had wrapped round him and since it was black and it was night, there is no wonder that some described it as a blanket and <NAME>, as a chaddar. There is a mystery about an abrasion found on the band of <NAME>; none of the prosecution witnesses knows how-she received it. She did not take any part in the occurrence and remained at the door throughout. The appellants themselves did not say what had happened that evening and <NAME> has not come in the witness-box. When it is not known that she received the abrasion in the same transaction in which <NAME> received his fatal wound, it cannot be said that the prosecution witnesses should not be believed because they have not explained her injury.

13. The prosecution witnesses were cross-examined at great length by <NAME>, <NAME> and <NAME>, the learned counsel of the accused. The cross-examination, I regret to say, was a rambling and purposeless cross-examination. Many inadmissible and irrelevant questions were put to the prosecution witnesses. The learned Sessions Judge did not exercise any control, not even to shut out irrelevant and inadmissible questions. The consequence was that the trial was very much protracted and much public time was wasted. Though there was not much evidence and the case was very simple, the trial took eleven days. An idea of the excessive length of the cross-examination can be had from the fact that the cross-examination occupied generally six times the space occupied by the examination in chief and in some cases even twelve times. Witness after witness was cross-examined about certain statements made by him in the deposition but not to be found in his statement under Section 162 , Criminal P. C. A statement recorded by the police under Section 162 can be used for one purpose and one purpose only and that of contradicting the witness. Therefore if there is no contradiction between his evidence in <ORG> and his recorded statement in the diary, the latter cannot be used at all. If a witness deposes in <ORG> that a certain fact existed but had stated under Section 162 either that that fact had not existed or that the reverse and irreconcilable fact had existed it is a case of conflict between the deposition in the <ORG> and the statement under Section 162 and the latter can be used to contradict the former. But if he had not stated under Section 162 anything about the fact there is no conflict and the statement cannot be used to contradict him. In some cases an omission in the statement under Section 162 may amount to contradiction of the deposition in <ORG>; they are the cases where what is actually stated is irreconcilable with what is omitted and impliedly negatives its existence. If the statement under Section 162 can be reconciled with the deposition in <ORG> and can stand with it, there is absolutely no conflict. If a witness stated under Section 162 that A was attached by X and makes no reference to Y at all but in the <ORG> deposes that A was attacked by X and Y, it is possible to argue that his statement under Section 162 amounts to this that A was attacked by X alone and that Y did not take part in the attack and thus contradicts the deposition in <ORG>. It depends upon whether the witness intended to name all the assailants of A in his statement or not. If a witness states under Section 162 that an incident was witnessed by S, T, W, X and Y and deposes in the <ORG> that it was witnessed by S, T, W, X, Y and Z, there may be or may not be any conflict between the two. If his list of the eye-witnesses under Section 162 was intended to be exhaustive, it may amount to his denying that Z also was an eye-witness and thus contradict his deposition in <ORG>. But if it was not intended to be exhaustive, then it cannot be said that his statement amounts to denial of the fact that Z also was an eye-witness.

14. Unless, therefore, a deposition in <ORG> cannot be reconciled with what is stated under Section 162 , the statement under Section 162 cannot be used to contradict the witness. It is stated by Willis on Circumstantial Evidence, Edn. 7, p. 443 :

"Still less are mere omissions to be considered as necessarily casting discredit upon testimony which stands in other respects unimpeached and unsuspected. Omissions are generally capable of explanation by the consideration that the mind may be so deeply impressed with, and the attention so riveted to, a particular fact, as to withdraw attention from concomitant circumstances, or prevent it from taking note of what is passing. It has been justly remarked that, "upon general principles, affirmative is better than negative evidence. A person deposing to a fact which he states he saw, must either speak truly, or must have invented his story, or it must have been sheer delusion. Not so with negative evidence; a fact may have taken place in the very sight of a person who may not have observed it; and if he did observe it, may have forgotten it," (Sir <NAME> in Chambers v. Queen's Proctor, (1840) 2 Curties. Rep. at p. 434.") <NAME> observed in <CITATION> , A. I. R. (20) 1933 Pat. 440 at p. 441 :

"Entries of statements in the diary are notoriously very condensed and the omission of some detail in the note of a statement is not always a sure indication that such detail was absent from the statement; and certainly a Court should never use such an absence as a contradiction without taking the evidence to prove that no such thing was stated."

15. <CITATION> , A. I. R. (20) 1933 Mad. 372 (2), the question was whether a statement under Section 162 could be proved to show that the witness made assertion in his deposition which he did not make in the statement. <NAME> answered it in the negative. He observed that the question had to be answered in the negative unless an omission from a statement under Section 162 can be said to be a contradiction of a statement made in the <ORG>. He went on to say :

"Whether it is considered as a question of logic or of language, 'omission' and 'contradiction' can never be identical. If a proposition is stated any contradictory proposition must be a statement of some kind, whether positive or negative. To 'contradict' means to 'speak against' or in one word to gainsay. It is absurd to say that you can contradict by keeping silent."

I would not go as far as <NAME> to say that an omission can never be a contradiction bat I certainly agree with him that it is not synonym, cms with contradiction and that generally it does not amount to contradiction.

16. Closely connected with this question when does an omission amount to a contradiction, is the question of the proper way of using a statement made under Section 162 for the purpose of contradiction. The section itself does not lay down the manner in which the statement can be used for contradiction. Under Section 145 , Evidence Act , a witness may be contradicted by a previous statement made by him and reduced to writing but before the statement is proved, the witness's attention must have been drawn to it. When under Section 162 a statement can be used only for the purpose of contradicting the witness when in the witness-box, it means that out of the whole statement made by him under Section 162 , only the particular assertion, which contradicts his deposition in <ORG> can be used. The proviso to Section 162 itself speaks of the deposition being contradicted by "any part of such statement. "Reading Section 162 of the Code and Section 145 , Evidence Act , together one finds that the proper way of contradicting the witness is by drawing his attention to the particular assertion or sentence in the statement under Section 162 by reading it over and not by reading over the entire statement. Naturally if it is not possible for the cross-examining counsel to point to any particular sentence or assertion in the statement as contradicting the deposition in the <ORG>, he cannot draw the witness's attention to any sentence or assertion. This supports what I have said above that an omission is not a contradiction unless what is actually said contradicts what is omitted to be said. The test to find out whether an omission is a contradiction or not is to see whether one can point to any sentence or assertion which is irreconcilable with the deposition in the <ORG>. It would be quite meaningless to say that the entire statement under Section 162 contradicts the deposition; therefore, one cannot point to the entire statement as being irreconcilable with the deposition.

17. In the example given above, if the circumstances indicated that the witness meant to give an exhaustive list of the assailants to the police, when he deposed in <ORG> that A was attacked by X and Y he may be confronted with his statement under Section 162 that A was attacked by X, and asked to explain the conflict. Similarly, in the other example he may be confronted with his statement under Section 162 that S, T, W, X and Y were the eye-witnesses and asked how he omitted the name of Z. If there is nothing to indicate that he meant to give an exhaustive list of assailants or witnesses, that itself is the explanation for his omitting to mention the name of Y as an assailant and that of Z as an eye-witness and there would be no sense in confronting him with his statement under Section 162 and calling upon him to explain. When the particular sentence or assertion in the statement under Section 162 is put before the witness, it must be marked by being underlined or enclosed in a circle and exhibited. The entire statement should never be exhibited; it is not admissible in evidence and has not been brought to the notice of the witness. If the witness admits having made that assertion or spoken that sentence, the assertion or sentence is proved also and nothing further remains to be done; if he denies or does not remember having made the assertion or spoken the sentence, the station officer will have to be called to prove that he made or spoke it. This will be done by asking him whether the witness made the assertion or spoke the sentence bearing exhibit number so and so. This is the right way of proceeding to contradict a witness. I have dealt with this matter at length because many Ses. Judges do not know when an omission is a contradiction and allow lot of public time to be wasted in long cross-examination about omissions, and do not know the right way of confronting a witness by his previous statement and of getting it proved by Sub-Inspector. It is quite wrong for a Sessions Judge to make a note, when a witness denies or does not remember having made a certain statement before the Sub-Inspector, that such a statement exists or does not exist. There was no dispute about <NAME> being stabbed in the abdomen yet there was unnecessary cross-examination of <NAME> about his not stating in the report that the stabbing was done in the abdomen. There was no sense in asking <NAME>, who was not an eye-witness of the crime, whether anyone chased the assailants, whether he himself made any attempt to catch any of them and wheher he told anyone to catch any of them. The question whether <NAME> brother was married in the same village in which <NAME> was married was irrelevant because even if it was answered in the affirmative it would not at all show that <NAME> evidence should not be believed. <NAME> boil and his brother's widow had nothing to do with the case; yet they were introduced in cross-examination. Though the evidence is that <NAME> had run away with the knife, <NAME> and <NAME> were unnecessarily questioned whether they made a search for the knife on the spot. <NAME> was not shown to have anything to do with the case K.E. v. <NAME>, yet he was asked whether one <NAME> was a witness against <NAME>. The Station Officer was asked about statements made before him by <NAME> who wae not even a witness. Some fantastic suggestions were made in the cross-examination of the Station Officer which had no basis at all. These are some of the instances of meaningless and vexatious cross-examination conducted by the accused's counsel. I consider that it was an abuse of the process of <ORG>. I am surprised that the learned Sessions Judge allowed so much of the public time to be wasted and the witnesses to be harassed by such cross-examination. Viscount <NAME> stated in <ORG> v. <NAME> etc., 1935 A. C. 346 at p. 360:

"A protracted and irrelevant cross-examination not only adds to the cost of litigation, but is a waste of public time. Such a cross-examination becomes indefensible when it is conducted, as it was in this case, without restraint and without the courtesy and consideration which a witness is entitled to expect in a Court of law. It is not sufficient for the due administration of justice to have a learned, patient and impartial Judge. Equally with him, the solicitors who prepare the case and the counsel who present it to the Court are taking part in the great task of doing justice between man and man."

Lord <NAME> said in Vassiliades v. Vassiliades, 1945 ALL. L. J. 34, at p. 37:

"Now cross-examination is one of the most important processes for the elucidation of the facts of a case and all reasonable latitude should be allowed but the Judge has always a discretion as to how far it may go or how long it may continue. A fair and reasonable exercise of his discretion by the Judge will not generally be questioned by an Appellate Court."

His Lordship also referred to the above-quoted observation of the Lord Chancellor Lord <NAME>.

18. All the appellants pleaded not guilty and 'alibi'. <NAME> stated that he was in Bombay and <NAME>, that he was in his Khalian in the neighbouring village Ajaipur. <NAME> could not explain why the witnesses had given evidence against him, while the other two appellants pleaded enmity with them. <NAME> did not examine any witness in defence, but the other two examined three witnesses between them.

19. I have not the slightest doubt that <NAME> was murdered by being stabbed in the abdomen with a knife at the door of <NAME> in the evening of 5-12-1948. The Station Officer found blood in front of <NAME>'s house. Though the crime was committed in the evening and in the abadi, the appellants could not produce any evidence in rebuttal of the prosecution evidence about the occurrence. They did not have the courage to examine <NAME> and <NAME>. It seems to me that <NAME> did not have the courage to speak falsehood and go against the clear evidence and also did not want to admit the facts and thereby help the placing of the noose round the neck of one or more of his friends.

20. The evidence against <NAME> is unanimous; he is named by the eye-witnesses and was consistently named by <NAME> in his dying declaration. Neither the Committing Magistrate nor the learned Sessions Judge specifically asked the appellants to explain why <NAME> should have named them in the dying declarations. So it was contended that the evidence of the dying declarations cannot be used against them. Under Section 342 , Criminal P. C. it was open to the <ORG> to put specific questions to the appellants about the circumstances appearing in the evidence against them, but it was not bound to do so. What it was bound to do is to question them generally on the ease after the witnesses for the prosecution had been examined and that has been done. The words used in the obligatory part of Section 342 are "question" .... "generally on the case"; they do not mean that the accused should be questioned specifically about every circumstance appearing in the evidence against him. It may be that the <ORG> thought that when specific questions were put during the progress of the examination of prosecution witnesses, only general questioning was necessary to be done after the close of that examination. But, as I pointed out, the questioning about the specific circumstances is only optional and if the <ORG> did not provide for the contingency in which this questioning was not done during the examination of prosecution witnesses, I do not think that the omission can be made good by the <ORG> which can only interpret, but not legislate. In any case I do not find anything in the Code to suggest that if an accused is not questioned specifically about any circumstance appearing in the evidence against him, that circumstance cannot be used against him and the evidence about it becomes inadmissible. The admissibility of evidence depends solely upon the provisions of Evidence Act and is not affected by failure to comply with those of the Code . If the imperfect examination of an accused has prejudiced him in the defence, his conviction may be vitiated, but that is not the same thing as saying .... that part of the evidence, which is relevent and admissible should be struck off the record. If he has been prejudiced, an appellate <ORG> may order his retrial, but counsel for the appellants do not want any retrial in the present case. The facts, in <CITATION> , A. I. R. (20) 1933 P. C. 124., relied upon by the appellants, were different. There the trial <ORG> had stressed the fact that the accused had offered no explanation about a certain matter. As the accused had not been questioned about that matter at all while under examination under Section 342 , Lord <NAME> observed that the departure from the statutory rule in Section 342 :

"deprives of any force the suggestion that the doctor's" (he was the accused) "Omission to explain what he was never asked to explain supplies evidence."

21. In the present case there is no question of relying upon the appellant's failure to explain why <NAME> named them in the dying declarations; the evidence consists of the dying declarations themselves and not of any failure of the appellants, to offer any explanation for them. The evidence about the dying declarations was quite prominently given; four witnesses were examined simply to prove the dying declarations. They were cross-examined at great length as I have already shown. In the circumstances the general questions put to them by the Magistrate and the learned Sessions Judge should have sufficed to make them offer explanation, if they had any. I do not think any prejudice was at all caused by the failure of the Courts below to ask them specifically about the dying declarations. <NAME> had no enmity with <NAME> and when one has regard to his character one would find it impossible to imagine that he falsely accused him of the crime. As regards the other two appellants there is the evidence of the eye-witnesses and of the dying declaration of <NAME> at the spot. But there is no mention of them at all in the dying declaration made in the hospital. There were four occasions on which <NAME> could have referred to them in the latter dying declaration but failed on every occasion. This dying declaration stands in sharp contrast with the oral dying declarations about which evidence has been given by <NAME> etc. That evidence is dimply this that <NAME> had said that he had been stabbed by <NAME> as the instigation of <NAME> and <NAME>. If in that one-sentence declaration <NAME> could mention the part played by <NAME> and <NAME>, it is difficult to understand why he did not even mention them in his more detailed declaration in the hospital. Under Section 82 , Evidence Act , it is the statement actually made by the deceased (as to the cause of his death or of the circumstances of the transaction which resulted in his death) which is relevant and not what he omits to state. In other words, no argument can be built upon what he has not said in his declaration. His declaration must be distinguished from the deposition he would have made if he were alive. One could have drawn some inferences from his failing to mention a fact in his deposition, but one cannot draw any inference from his failure to mention it in the dying declaration. This follows from what I said above, namely, that what is relevant is what he has said and not what he has not said. The position, however, is different when what he has omitted to say would be irreconcilable or inconsistent with what he has actually said. If he has named only X as his assailant and the circumstances suggest that he intended to be exhaustive it means that everybody else was not his assailant. If <NAME>'s and <NAME>'s sitting there with <NAME>, instigating him to strike <NAME> and running, away with <NAME> is inconsistent with what <NAME> mentioned in his dying declaration, it means that the dying declaration contradicts the evidence given by the witnesses about the part played by <NAME> and <NAME>, I think in this particular case it is not easy to say that there is no inconsistency between the two. I find it difficult to say that the positive statement that <NAME> was sitting there, that as soon as he (<NAME>) and <NAME> got up to go he was stabbed by <NAME> and that <NAME> after knocking him down fled away, does not impliedly deny the presence of <NAME> and <NAME> and their instigation and running away together with <NAME>. When this implied statement of a person whose truthfulness is not in question at all runs counter to the oral evidence, it creates a reasonable doubt about the truth of the oral evidence. <NAME> and <NAME> must; be given the benefit, of the implied statement of <NAME> that they did not take part in the crime.

22. The conviction of <NAME> must be maintained as also the sentence which was fully justified. For such a cowardly and treacherous attack on an innocent man, hanging was the only punishment that could be inflicted.

<NAME>, J.

23. I agree with my learned brother <NAME> that the appeal of <NAME> be dismissed and that the appeal of <NAME> and <NAME> be allowed. I shall briefly note the reasons, and would not enter into a discussion of the evidence of witnesses who were cross examined at very great inordinate length, which led to an undue prolongation of the trial and much unnecessary expenditure of time.

24. There is ample evidence against <NAME>, who is alleged to have stabbed <NAME> with a knife. The evidence consists of the statements of <NAME>, <NAME> and <NAME> and also of the statements made by <NAME> deceased on the spot and before Mr. <NAME>, Judicial Magistrate first class, <NAME>. There is no particular reason for any of these witnesses to depose falsely against <NAME>. There is no reason to doubt the presence of <NAME> at the time of the incident. His house is very close to the place of incident. The presence of <NAME> and <NAME> may be open to doubt, as their presence was accidental. <NAME> stated that he had gone to answer the call of nature at about sunset and that he was returning to his house when he saw the incident. The incident took place at about 7 p. m. <NAME> in his dying declaration before the Magistrate gave the time of the incident as 7-30 p. m. <NAME>'s statement that he saw the incident on his way back to his house after answering the call of nature is open to question. Ordinarily he would not be expected to be re-

turning at about 7.30 p. m. when he had left the house at about 5-30 p. m.

25. <NAME> accounts for his presence by saying that he had gone to bring arus leaves from behind the house of <NAME>. It was elicited in cross-examination of <NAME> that there is an arus tree on the north of the house of <NAME>, which is closer to the house of <NAME> than the house of <NAME>. <NAME> explained his going to the tree near <NAME>'s house by saying that at that time there were no arus leaves between the house of <NAME> and his house. The matter was not pursued further. If <NAME> could get the leaves closer to his house, he would not be expected to go a longer distance. The extra distance which he had to cover, even if the nearer tree had leaves, is not much and is said to be about a bigha. So it cannot be said that <NAME>'s explanation for his presence near the place of incident must be wrong. I need not express any opinion, therefore, as to how far it was proper to question <NAME> in cross-examination about the existence of the other arus tree near the house of <NAME> in order to show the improbability of <NAME>'s going near the house of <NAME>.

26. I do not agree with the contention that the dying declaration of <NAME> should not be taken into consideration on account of the fact that <NAME> was not questioned to explain as to why <NAME> named him in his dying declaration. <NAME> should have been questioned on this point. It has been repeatedly emphasised by this Court that Courts should examine the accused with respect to all the matters on the record which go against them. That is the purport of Section 342 , Criminal P. C. The mere omission to put necessary questions to the accused will not affect the trial, unless the accussed is prejudiced thereby. In the present case, I do not find that any prejudice has resulted to the accused on account of the omission to put him a question as to why <NAME> incriminated <NAME> in his dying declaration. The omission to question him does not also justify the non-consideration of the dying declaration. The dying declaration of <NAME> is admissible evidence. The accused knew about it. If he had to say anything in particular to account for <NAME>'s accusing him, he could have said so in answer to the general question whether he had to say anything more.

27. Even if the statements of <NAME> and <NAME> be not accepted, the statement of <NAME> together with the dying declaration of <NAME> amply justify the conclusion that <NAME> was the actual assailant of <NAME> deceased.

28. The evidence against the other two appellants, namely, <NAME> and <NAME> consists of the statements of the same three eye-witnesses, namely, <NAME>, <NAME> and <NAME>, and of the dying declaration made by <NAME> on the spot. They were not named by <NAME> in the dying declaration made by him before Mr. <NAME>, Judicial Magistrate. The fact that <NAME> did not mention them as the instigators of <NAME> for striking <NAME> in his dying declaration recorded by the Magistrate justifies the doubting of the statements of the prosecution witnesses that <NAME> had named them in his dying declaration and also the statements of the eye-witnesses that these two appellants, had instigated <NAME>. The omission is of such a nature that one can conclude that if these appellants had instigated <NAME>, in all probabilities <NAME> would not have failed to mention their names. <NAME> stated about the presence of <NAME>. He did not mention the presence of these two persons at the time of incident. He stated that <NAME> was also sitting there and yet he did not state that these two persons were sitting at the time. He then stated that <NAME> felled him down and fled away. In this connection he could have said that these appellants, fled away with <NAME>. Of course, as already mentioned, he did not mention that <NAME> stabbed him at the instigation of these persons. It follows, therefore, that the statement of <NAME> on account of the omission of the names of <NAME> and <NAME> as instigators throws doubt on the veracity of the witnesses with respect to his mentioning them as instigators on the spot or on the statements of eye-witnesses that they had seen these two persons instigating <NAME>.

29. I would, therefore, give the benefit of doubt to <NAME> and <NAME>.

30. By the Court.--We maintain the conviction and sentence of <NAME>, dismiss his appeal, accept the reference and direct that the sentence of death be carried out according to law. We allow the appeal of <NAME> and <NAME>, set aside their conviction and sentence and acquit them. They shall be set at liberty unless they are required to remain in custody under some other warrant.


PETITIONER: M/S. MAHARANA MILLS (PRIVATE) LTD. Vs. RESPONDENT: THE INCOME-TAX OFFICER, PORBANDAR DATE OF JUDGMENT: 14/04/1959 BENCH: <NAME>, J.L. BENCH: <NAME>, J.L. SINHA, BHUVNESHWAR P. HIDAYATULLAH, M. CITATION: 1959 AIR 881 1959 SCR Supl. (2) 547 CITATOR INFO : R 1961 SC 699 (5) R 1974 SC1369 (8) F 1975 SC 910 (10,13,19) ACT: Income Tax-Depreciation-Written Down Value-Computation for Prior yeays-Whethey binding for succeeding years-Fresh calculation for written down value by income-tax Officer--Notice to assessee-When essential- Indian Income-tax Act , 1922 (XI Of 1922), SS. 10(2)(vi), 35(1), 63. HEADNOTE: Sub-section (1) Of s. 35 of the Indian Income-tax Act, 1922, provided: the Income-tax officer may on his own motion rectify any mistake apparent from the record and shall rectify any such mistake which has been brought to his notice by an assesses : Provided that no such rectification shall be made, having the effect of enhancing or reducing a 548 refund unless...... the Income-tax Officer...... has given notice to the assessee of his. intention so to do and has allowed him a reasonable opportunity of being heard." The appellant, a private limited company, was assessed to income-tax for the assessment year 1953-54 under the provisions of the Indian Income-tax Act , 1922, and as per the assessment order dated June 30, 1955, the amount of depreciation allowed under s. 10(2)(vi) of the Act was Rs. 3,48,1O5. On August 8, 1955, the appellant made an application before the Income-tax Officer for rectification of the order under S. 35 of the Act, pointing out certain mistakes in calculation in regard to the depreciation amount. By his order of February 27, 1956, the Income-tax Officer corrected the written down value of the different properties of the appellant and determined the total allowable depreciation to be Rs. 1,94,074. The appellant challenged the order dated February 27, 1956, on the grounds, inter alia, (1) that he was not given a written notice of the intended rectification of the written down value, (2) that the provisions under which the Income-tax Officer acted, i.e., S. 35 of the Act, was not meant for the purpose of making corrections in written down values, the correct provision being s. 34 which specifically refers to excessive depreciation, and (3) that, in any case, he had exceeded his jurisdiction under s. 35 of the Act in calculating the depreciation on the written down value of the buildings and machinery of the appellant acting suo motu, and that he could correct only those mistakes which had been pointed out by it. It was found that notice was given to the appellant of the intended determination of the written down value, though it was not a written notice, and that the matter was discussed with its representative. Held : (i) that the object of the provision as to notice under s. 35 Of the Indian Income-tax Act, 1922, is that no order should be passed to the detriment of an assessee without affording him an opportunity for being heard and that if, as a matter of fact,the assessee knew of the proceedings and the matter had been discussed with him, an adverse order would not be invalid merely because no written notice was given. (2) that the word " record " used in the phrase " mistake apparent from the record" in S. 35(I) of the Act refers not only to the order of assessment but comprises all proceedings on which the assessment order is based and the Income-tax Officer is entitled for the purpose of exercising his jurisdiction under S. 35 to look into the whole evidence and the law applicable to ascertain whether there was an error. If he doubts the written down value of the previous year it is open to him to check up the previous calculations and, if he finds any mistake, to make fresh calculations in accordance with the law applicable including the rules made thereunder. A mistake contemplated by this section is not one which is 549 to be discovered as a result of an argument but it is open to the Income-tax Officer to examine the record including the evidence and if he discovers any mistake he is entitled to rectify the error provided that if the result is enhancement of assessment or reducing the refund, then notice has to be given to the assessee and he should be allowed a reasonable opportunity of being heard. <CITATION> .,  S.C.R. 703, <CITATION> ,  L.R. 65 I.A. 236 and <NAME> Commissioner of Income-tax,  2I I.T.R. 333, relied on. JUDGMENT:

CIVIL APPELATE JURISDICTION: Civil Appeal No. 39 of 1959. Appeal by special leave from the judgment and order dated November 26, 1957, of <ORG> at Rajkot in Special Civil Application No. 119 of 1956. <NAME>, <NAME>, <NAME>, <NAME> and <NAME>, for the appellants. <NAME>, Attorney-General for India, <NAME> and <NAME>, for the respondent.

1959. April 14. The Judgment of the Court was delivered by KAPUR, J.-This is an appeal by special leave against the judgment and order of <ORG> at Bombay dismissing the appellant's petition under Art. 226. The appellant before us is a private limited company carrying on the business of manufacturing and selling textiles and the respondent is the Income-tax Officer of <ORG>. Previous to the year 1949, in <ORG> which became a part of the State of Saurashtra, there was no income-tax. In 1949 the Saurashtra Income-tax Ordinance (hereinafter termed the Ordinance) was promulgated which was applicable to the State of Saurashtra. By that Ordinance income-tax became leviable and from 1950 onwards when Saurashtra became part of the Union of India the Indian Income-tax Act (hereinafter referred to as the Act) became applicable by reason of the Finance Act of 1950 (Act XXV of 1950).

The appellant 'Was taxed for the accounting year 1949, i.e., the assessment year 1950-51. In that year the amount of depreciation allowed under s. 10(2)(vi) of the Act was Rs. 3,43,869. The appellant continued to be assessed to income- tax in the assessment years 1952-53 and 1953-54 and the present appeal relates to the assessment of year 1953-54. According to the assessment order dated June 30, 1965, the amount of depreciation allowed for the assessment year 1953- 54 was Rs. 3,48,105. On August 8, 1955, the appellant made an application for rectification under s. 35 of the Act. In this application he pointed out several mistakes in calculations in regard to the depreciation amount. By his order of February 27, 1956, the Income-tax Officer corrected the Written Down Value of the different properties of the appellant and determined the total allowable depreciation to be Rs. 1,94,074. The order of the Income-tax Officer was as follows:

" To arrive at the Written Down Value of the assets it was necessary to maintain depreciation record. This being not done so far, is done now and working attached. Depreciation allowance as per rules is worked out at Rs. 1,94,074 as per working sheet attached.

The correct computation of income is as under:- Income before allowing depreciation as per original assessment order:Rs.1,00,674 Less charity disallowed wrongly written Rs. 21,889 instead of Rs. 20,124: Rs.1,765 Income Rs.98,909 Less depreciation Rs.1,94,074 Rs.95,165 Less Dividend income as per origi-

nal assessment order: Rs.11,870 Loss. Rs.83,295 Loss on account of depreciation to be carried forward. Declared N. A. "

<NAME>

And thus the unabsorbed depreciation amount which under the assessment order of June 30, 1955, was Rs. 2,31,944 was reduced to Rs. 83.,295 and this was set off against the appellant's income of the assessment year 1954-55. On February 29, 1956, the Income-tax Officer passed two provisional assessment( orders for the years 1954-55 and 1955-56. In both these orders he calculated the depreciation amounts on the basis of the same Written Down Value as he had determined for the year 1953-54. The reasons for calculating them on the new basis were set out by the Income-tax Officer in his order dated May 18, 1956, and they were:-

" Less Depreciation. The depreciation of the Company has not been properly calculated by arriving at, Written Down Value as per the Saurashtra Income Tax Ordinance and also as per Indian Income-tax Act . The assessee Company was being assessed regularly even as per Indian Income-tax Act . So Written Down Value of all assets are arrived at by working out the depreciation as per above Ordinance as well as Income Tax Act . The depreciation is worked out as per separate statement keeping in view the following:

(i) Definition of " assessee " as per Indian Income-tax Act .

(ii) The exact meaning of W.D. V. as per Income-tax Act .

(iii) The meaning of W. D. V. as per the Saurashtra Income-tax Ordinance, 1949 and Rules (Page 20, para. 13-5- A).

(iv) 1. T. R. Volume 25, 558. Decision of Calcutta High Court as regards C. I. T., West Bengal,M/s. <ORG>

(v) Views expressed by Taxation Enquiry Commissioner, 1953- 54, Volume II, page 84, para. 34.

(vi) Taxation Laws (Part 'B' State) (Removal of Difficulties Order, 1950.

The depreciation thus worked out as per separate statement". On August 8,1955,the appllant made an application under s. 35 for certain corrections in the calculations and the order thereon was passed on February 27, 1956, but no written notice of the intended rectifi- cation of the Written Down Value and the depreciation amount was given by the Income-tax Officer to the appellant under s, 35 read with s. 63 of the Act. On March 9, 1956, the appellant wrote to the Income-tax Officer protesting against the order:-

" You have exercised powers not vested in you under the said Section, and you have gone beyond the purview of the Act by preparing statements and records which are prejudicial to the rights of the Company ".

The appellant requested the Income-tax Officer to cancel his previous order and to pass a fresh order correcting onlv those mistakes which had been pointed out by it' On the same day the appellant sent another letter asking for the cancellation of the provisional assessment order for 1954-55 and requested for a revised assessment order on the basis of the return filed by it. The reply of the Income-tax Officer of the same date was that the order was correct and a similar order was made on the second application in regard to the assessment of 1954-55.

On April 16, 1956, the appellant filed a petition in <ORG> under Arts. 226 and 227 in which it alleged that the Income-tax Officer had:

" exceeded the limits of jurisdiction vested in him and exercised illegally jurisdiction not vested in him by law under Section 35 and passed orders, inter alia, and suo motu and without giving any prior notice and altered the entire procedure and basis of calculating depreciation on the written down value of buildings and machinery of the petitioners The appellant prayed that the order made under s. 35 of the Act be quashed and an injunction issued restraining the Income-tax Officer from recovering the assessed tax. <ORG> dismissed this petition on the ground that it contained misstatements of fact ; that " The advantage of this jurisdiction is not available to the subject when adequate and efficacious remedy is available to him under the ordinary law " ; that the appellant could, under s. 33A of the Act, have gone in revision to the Commissioner. <ORG> also held against the appellant on merits. The appellant has come to this Court by special leave and three questions were raised (1) that no notice as required under s. 35 was given to the appellant; (2) that there was no record on the basis of which the rectifica. tion in the Written Down Value of the property could be made and (3) that there was no mistake apparent from the record.

The learned Attorney-General contended in the first instance that the remedy available under Art. 226 is a discretionary one and if <ORG> had exercised its discretion no appeal was competent and in support of his contention he relied upon the judgment of this <ORG> in <CITATION> , etc. (1), where <NAME>, J., (as he then was) said:-

For purpose of this case it is enough to state that the remedy provided for in Art. 226 of the Constitution is a discretionary remedy and <ORG> has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere ".

It is not necessary to decide in this case whether the order passed under Art. 226 is of a discretionary nature and therefore in appeal this Court would not interfere with the exercise of discretion, because in our opinion, the case can be decided on other grounds of substance.

The first question is that of notice under s. 35 of the Act. The affidavit of the Income-tax Officer shows that the correctness of the figures for determining the depreciation was discussed with the appellant's Secretary. The Income- tax Officer stated that:

" The depreciation which was calculated in the assessment order of 1953-54 was as per the statement given by the petitioner. On submission of the said application the petitioner (<NAME>, the Secretary of the <ORG>) was told that the depreciation will be given after rectifying mistakes. The petitioner had (1) (1954) S.C.R. 738, 747.

agreed to the same. There being no record of the working out from the first available record in the Assessment order for the Assessment year 1943-44, the petitioner was also supplied with the copy of the working of the depreciation along with the necessary rules and regulation for calculating the same ".

He also stated that the order of rectification was passed "almost at the end of the financial year, after explaining and discussing all the above calculation along with the relevant rules and regulation of the calculated depreciation " ; that the order was not passed without giving a reasonable opportunity to the appellant; that the matter was discussed with its representative more than once; thattheassessment for the year 1954-55 was made final after calculatitig the depreciation; that the point of depreciation was notraised by the applicantat any hearingand that even though no written notice was given, the represen- tative of the appellant was given notice of the intended determination of the Written Down Values. He also stated : " Thus though no written notice is given, applicant is given notice of the intention of calculating depreciation on record basis and is also allowed a reasonable opportunity of being heard inasmuch as he was given the calculation of depreciation on 21-2-1956 ".

The orders placed on the record show that the Income-tax Officer made calculation for the purpose of determining the depreciation amount and after giving deductions allowed by the Act and the Rules made thereunder arrived at the corrected figure of Rs. 1,94,074 for the assessment year 1953-54.

Apart from the fact that the petition of the appellant does not set out clearly all the facts which should have been set out, there is the affidavit of the respondent that the matter was discussed with the representative of the appellant although no written notice was given. In this connection the learned Attorney-General has further submitted (1) that the order determining the depreciation amount allowable was not final;

(2) that the effect of the order making the rectification was not of enhancing the assessment or reducing the refund; and (3) that the question of depreciation could be raised at the time of assessment in any subsequent year. The object of the provision as to notice in s. 35 is that no order should be passed to the detriment of an assessee without affording him an opportunity but it cannot be said that the Rule is so rigid that if, as a matter of fact, the assessee knows of the proceedings and the matter has been discussed with him then an adverse order would be invalid merely because no notice under s. 63 was given. Of course this postulates that a reasonable opportunity has been given to show cause. Secondly this provision is applicable only where the assessment is enhanced or-refund is reduced. Neither of those contingencies has arisen in the present case.

The depreciation allowed to the appellant in the year of assessment 1943-44 when the appellant was assessed as a non- resident, was Rs. 1,91,224. In the year 1944-45 there was no asssessable income in British India and so also in 1945-

46. In the year 1946-47 there was a loss. In the year 1947-48 as in the preceding years the sales were effected at <ORG> and there was no collection made in British India. The total tax due was calculated at Rs. 43-11As. In 1948-49 the sales were Rs. 38,656 and they were assessed to income- tax on a total income of Rs. 9,326. For the accounting year 1948, i.e., the assessment year 1949-50 when the Ordinance came into force the total depreciation amount allowed was Rs. 3,66,925 which was much more than what was allowable on the Written Down Values determined in accordance with the provisions of the Ordinance which defined Written Down Value:

Written Down Value means-

(a) In the case of assets acquired in the previous year, the actual cost to the assessee;

(b) In the case of assets acquired before the previous year the actual cost to the assessee less all depreciation actually allowed to him under this Ordinance or allowed under any Act repealed hereby or which would have been allowed to him if the Indian Income- tax Act, 1922, was in force in past ".

On the basis of this Ordinance and the other Statutes and Rules mentioned in his affidavit, which have been set out above, the Income-tax Officer-made the various calculations and determined the depreciation amounts which have given rise to the controversy before us. These calculations were based on the Written Down Values for the successive assessment years up to the year of assessment 1953-54. But it was argued by counsel for the appellant that according to s. 10(5)(b) of the Act the Written Down Value in the case of assets acquired before the previous year mean the actual cost to the assessee less all depreciation actually allowed to him under the Act or under any Act repealed thereby and therefore the provisions of the Saurashtra Ordinance which came to an end when the Act became applicable cannot form the basis of determining the Written Down Value for the purposes of assessment of the years 1950-51 onwards. In reply it was submitted that the Written Down Values were calculated and depreciation deter- mined for the year 1943-44 and should in subsequent years have been calculated in accordance with the provisions of the Ordinance and they could not become higher for purposes of s. 10(5)(b) of the Act merely because the Ordinance was replaced by the Act. In this connection reference was made to s. 12 of the Finance Act, 1950, s. 12 of which empowered <ORG> to make provision for the removal of difficulties in giving effect to the provisions of any of the Acts, Rules or Orders extended by s. 3 or s. 11 of that Act, i. e., Finance Act , 1950. Under that section (s. 12) the Taxation Laws (Part B States) Removal of Difficulties Order, 1950, was promulgated on December 2, 1950, and by cl. 2 of this Order provision was made for computation of aggregate depreciation allowance and Written Down Values. To this Order the following explanation was added on March 9, 1953: (Notification No. S. R. 0. 477):-

" For the purposes of this paragraph, the expression " all depreciation actually allowed under any laws or rules of a Part B State " means and shall be deemed to have always meant the aggregate allowance for depreciation taken into account in computing the Written Down Value under any laws or rules of a Part B State or carried forward under the said laws or rules. But the appellant's counsel contended that this explanation is ultra vires because it was promulgated under s. 60-A of the Act and that section was inapplicable to the Order made under s. 12 of the Finance Act, 1950. He relied on two cases decided by <ORG> in <CITATION> (1) and <CITATION> . (2) but we are informed that one of those judgments is under appeal to this Court and we therefore do not wish to express any opinion upon the cor- rectness or otherwise of this contention raised by the appellant.

It was next argued by the learned Attorney-General that the Written Down Values determined under S. 35 are not final and can be redetermined in the following assessment years and in support he referred to <CITATION> (3) where the original cost of the machinery purchased ]Rs. 3,40,000-was accepted in the successive assessment years till it was doubted in the assessment order 1946-47 and was determined at Rs. 2,80,000 and it was contended that the Income-tax Officer had to take the Written Down Value of the previous year as correct. Thus the question there raised was whether the Income-tax Officer was entitled in law to go behind the original cost accepted by his predecessor ever since the assessment year 1939-40. It was held that neither the principle of res judicata nor estoppel nor the terms of s. 10 (2) (vi) of the Act prevented the Income-tax Officer from determining. for himself' what the actual cost of the machinery had been and that depreciation had to be calculated for every year and it was open to the Income-tax Officer not merely to perform " a mathematical operation on (1)  29 I.T.R. 2o6. (2)  29 I.T.R. 21O, (3)  25 I.T.R. 558.

the basis of the Written Down Value of the previous year, but one of determining the Written Down Value himself ". The limit to which the Income-tax Officer can go back does not stop at the Written Down Value of the previous year but extends up to the figure of the original cost, and the method enjoined by s. 10(5)(b) is not that the Income-tax Officer should merely scale down the Written Down Value of the previous year, but that he should take into consideration the actual cost, determining it for himself, if necessary, take also into consideration the allowances granted in the past and then make his own-computation as to the Written Down Value for the assessment year with which be is concerned. Thus it cannot be said that merely because under s. 35 some Written Down Value and the depreciation amount have been determined they are a final determination binding for all times to come nor does the determination operate as estoppel or resjudicata for the following years. Therefore it cannot be said that there is no other efficacious and adequate remedy open to the appellant to challenge the depreciation amount determined under s. 35 . Counsel for the appellant contended that the provision under which the Income-tax Officer acted, i. e., 35 was not meant for the purpose of making corrections in Written Down Values; and that for the purpose the appropriate and correct provision was s. 34 which specifically refers to excessive depreciation. There are two sections under which an Income- tax Officer can act, i. e., ss. 34 and 35 and the question for decision that arises is whether s. 35 was open to him. Section 35 provides:

" The Commissioner or Appellate Assistant Commissioner may, at any time within four years from the date of any order passed by him in appeal or, in the case of the Commissioner, in revision under section 33A and the Income-tax Officer may, at any time within four years from the date of any assessment order or refund order passed by him on his own motion rectify any mistake apparent from the record of the appeal, revision, assessment or refund as the case may be, and shall within the like period rectify any such mistake which has been brought to his notice by an assessee ". The question therefore is was it a mistake apparent from the record which the Income-tax Officer has rectified. It was submitted that recalculation is not rectifying a mistake which is apparent from the record. The words used in the section are " apparent from the record " and the record does not mean only the order of assessment but it comprises all proceedings on which the assessment order is based and the Income-tax Officer is entitled for the purpose of exercising his jurisdiction under s. 35 to look into the whole evidence and the law applicable to ascertain whether there was an error. If he doubts the Written Down Value of the previous year it is open to him to check up the previous calculations and if he finds any mistake it is open to him to make fresh calculations in accordance with the law applicable including the rules made thereunder.

<ORG> in Commissioner of Income-tax v. <NAME>) held s. 35 to be applicable where the facts were that the assessee did not produce books of account and an assessment was made by the Income-tax Officer to the best of his judgment. An application for the registration of the firm was however allowed and it was registered on January 17, 1927. On the same day assessment was made under s. 23(4) . As it was a registered firm no super-tax was assessed. The Commissioner called for the record under s. 33 and cancelled the registration on January 28, and ordered the Income-tax Officer to take necessary con\sequential action. The result of that was that the assessee became liable to super-tax. Consequently an order for super-tax was made on May 4, 1929, and three days later notice of demand was issued. <ORG> held that as the fresh action taken by the Income-tax Officer was hopelessly out of time the demand for super-tax was illegal because after the final assessment the Income-tax Officer could not go on making fresh computations and issuing fresh notices of demand to the end of all time but it was held that (1) (1938) L. R. 65 I.A. 236.

the provisions of ss. 34 and 35 prescribed the only circumstances in which fresh assessment could be made and fresh notice of demand could be issued. At p. 426 Lord <NAME> observed:

" In the present case it is a debatable question r whether the circumstances were such as to bring it within the provisions of Section 34 . It is not necessary to determine that question inasmuch, as, in. their lordship's opinion, the case clearly would have fallen within the provisions of section 35 had the Income-tax Officer exercised his powers under the section within one year from the date on which the earlier demand was served upon the respondents. For, looking at the record of the assessments made upon them as it stood after the cancellation of the respondent's registration and the order affecting the cancellation would have formed part of that record-it would be apparent that a mistake had been made in stating that no super-tax was leviable ".

Thus the order effecting the cancellation of the regis- tration of the assessee's firm was considered to have formed part of the record of the case.

In <NAME> v. Commis. sioner of Income- tax (1) the facts were that a debt belonging to a joint family fell on partition to the share of the assessee. This debt was held not to be recoverable by a judgment of <ORG> dated September 29, 1941. Holding it to be within the accounting year <ORG> allowed this sum to be taken into consideration for the purpose of the accounting year. It subsequently corrected the error. It was held that under s. 35 the <ORG> was entitled to rectify the mistake and was competent to pass a consequential order dismissing the appeal instead of allowing it.

The power under s. 35 is no doubt limited to rectification of mistakes which are apparent from the record. A mistake contemplated by this section is not one which is to be discovered as a result of an argument but it is open to the Income-tax Officer to examine the record including the evidence and if he discovers any (I)  2I I.T.R. 333.

(2) S.C.R. SUPREME COURT REPORTS 561 mistake he is entitled to rectify the error provided that if the result is enhancement of assessment or reducing the refund then notice has to be given to the assessee and he should be allowed a reasonable opportunity of being heard. The scope and effect of the expression "mistake apparent from the record " and the extent of the powers of the Income-tax Officer under s. 35 of the Act were discussed by this Court in <CITATION> . (1) where the facts were these: A sum of Rs. 50,063 being interest on tax paid in advance was given credit for under s. 18A(5) of the Act. Subsequently there was an amendment of the Act by which the interest became allowable only on the difference between the amount of tax paid and what was actually determined. As a consequence of this the Income-tax Officer purporting to act under s. 35 of the Act rectified the mistake and reduced the amount of interest credited to Rs. 21,157 and issued a demand for the difference. The assessee obtained a writ of prohibition against the Income-tax Officer on the ground that the mistake contemplated under that provision had to be apparent on the face of the Order and it was not contemplated to cover a mistake resulting from an amendment of the law even though it was retrospective in its effect. The <ORG> appealed to this Court. Thus the question for decision in that case was whether ail order proper and valid when made could be said to disclose a mistake apparent from the record merely because it became erroneous as a result of a subsequent amendment of the law which was retrospective in its operation. In delivering the judgment of the Court <NAME>, J., said:-

" At the time when the Income-tax Officer applied his mind to the question of rectifying the alleged mistake, there can be no doubt that he had to read the principal Act as containing the inserted proviso as from April 1, 1952. If that be the true position then the order which he made, giving credit to the (1) [1959] S.C.R. 703.

7I respondent for Rs. 50,603-15-0 is plainly and obviously inconsistent with a specific and clear provision of the statute and that must inevitably be treated as a mistake of law apparent from the record. If a mistake of fact apparent from the record of the assessment order can be rectified under s. 35 we see no reason why a mistake of law which is glaring and obvious cannot be similarly rectified ". The decision of <ORG> in Commissioner of Income- tax v. <NAME> (1) was referred,to. Counsel for the appellant sought to distinguish both these cases; <NAME>'s case (2) and <NAME> case(1) on the ground that the record there considered was the assessment record of that year and the Income-tax Officer did not have to go to the records of the previous year. That is a distinction without a difference. If, for instance, the Income. tax Officer had found that in the assessment year 1952-53 there was an apparent arithmetical mistake in the account of the Written Down Value of the pro. parties which resulted in a corresponding mistake in the assessment of the year in controversy could he not take the corrected figure for the purposes of the assessment and could it be said that the mistake was not apparent from the record. A fortiori if lie discovered that the very basis of the different assessments was erroneous because of an initial mistake in determining the Written Down Value could it be said that this would not be a mistake apparent from the record. And if in order to determine the correct Written Down Value the Income-tax Officer makes correct calculations, can it be said that is not rectifying a mistake apparent from the record but is dehors it. In our opinion this appeal is without force and we would therefore dismiss it with costs.

Appeal dismissed.

(1) (1938) L.R. 65.1.A. 236. (2) [1959] S.C.R. 703.


ORDER <NAME>, J.

1. This is a Rule issued upon the opposite parties, the Superintendent of Police in the district of Burdwan, the Deputy Inspector General of Police, district Hooghly and the State of West Bengal, to show cause why a Writ in the nature of Certiorari should not be Issued quashing the order of the first respondent, dated 27-6-1952 and the order in appeal therefrom passed by the second respondent dated 5-11-1952 and why a Writ in the nature of Mandamus should not issue directing the opposite parties to forbear from giving effect to the said orders and/or findings and why such other order or orders should not be made as to this Court may seem fit and proper.

2. The facts are shortly as follows:-- The petitioner has been serving in <ORG> for the last 15 years. He was last serving as an officiating Sub-Inspector of Police at Kalna in the district of Burdwan, to which he was promoted in 1946 from the rank of an Assistant Inspector of Police.

On or about 31-12-1950 one <NAME>, a Zemindar of Burdwan, submitted a petition to the Inspector General of Police making several charges against the petitioner, e.g., that the petitioner had falsely implicated the complainant in the <NAME> dacoity case. It was said that the petitioner had interpolated certain entries in the General Diary No. 993 dated 19-12-1949 and the seizure list of search in connection with the investigation of Burdwan P. C. Case No. 28(12)49 under Section 458, I. P. C. The matter arose in the following way. The petitioner was investigating into the <NAME> dacoity case which took place on 17-12-1949. Next day, there was a burglary in the house of one <NAME> at Syamsayer. The burglars escaped, leaving behind an empty revolver holster.

According to the petitioner, he had reasonable grounds for suspicion that this holster belonged to <NAME>; he approached <NAME> for the production of his holster and as it could not he produced, his house was searched. The case of <NAME> on the other hand is that the holster was not found at the house of <NAME> at all. The holster was missing and was picked up by two constables in front of his house and deposited in the Police Station on the morning of 19-12-1949. His case was that on the basis of this holster, the petitioner framed a false case against him in order to implicate him in the dacoity and the burglary. Further allegation is that the General Diary entry and the seizure list were tampered with to support this false case.

Upon this complaint being made, there were certain investigations and on 17-5-1951 the Inspector General, Respondent No. 2, ordered that the Superintendent of Police, Burdwan, should draw up proceedings against the petitioner (and other persons with whom we are not concerned in this case). On 31-7-1951 charges were framed against the petitioner by the respondent No. 1 and he was directed to show cause why he should not be dismissed, discharged or degraded or otherwise dealt with for interpolation in the general diary entry No. 993 dated 19-12-1949 and the seizure list of search in connection with investigation of Burdwan P. S. Case No. 28(12)49, under Section 458 of the Indian Penal Code, and also for implicating the owner of a revolver holster in that case. The petitioner was asked to show cause by 13-8-1951.

The petitioner states that he was not given a copy of the petition of <NAME> or of the report of the preliminary enquiries.

The matter seems to have dragged on and several witnesses were examined, until 27-6-1952 when the first respondent made his report. In that report, the first respondent, after discussing the evidence, came to the conclusion that the holster was not found at the house of <NAME> and therefore the whole case of the petitioner must fail. He thereafter proceeded to say as follows:

"I think, therefore, that the charge that the S. I. took advantage of accidental recovery of the revolver holster of <NAME> to fabricate evidence against this person in order to implicate him in criminal case has been proved. Further from the evidence of the Handwriting Expert it had been proved that the charges on which the proceedings were drawn up, viz., that the S. I. made certain interpolations in the seizure list, have been proved and considering the circumstances of the case I also think it can be safely assumed that these interpolations were made with motive, namely, to strengthen the evidence against <NAME>."

"The offence of the S. I. has been serious. I have very seriously considered the question of his dismissal. He however appears to have a brilliant record in the matter of crime work. He has 58 rewards. In view of that I am inclined to show certain amount of consideration and order that he be permanently reverted to his substantive rank of <ORG> from the date of this order being communicated."

3. Prom this order the petitioner preferred an appeal before the second respondent, which appeal has been rejected.

The grievance of the petitioner is based on the principle which has been enunciated by <ORG> in the case of -- ' <CITATION> , AIR 1948 PC 121 (A). In that case, Mr. <NAME> was a member of <ORG>. It was proposed to hold a judicial enquiry under Section 55 of the Civil Services (Classification, Control and Appeal) Rules, into the conduct of Mr. <NAME> while stationed at Multan during 1935-36. Eight charges were formulated and he was asked to show cause why he should not be dismissed or removed or reduced or subjected to such other disciplinary action as the competent authority may think fit to enforce for breach, of Government Rules End conduct unbecoming to <ORG>.

Mr. <NAME> put in his written statement and Mr. <NAME>, the Commissioner of Rawalpindi, held a departmental enquiry. He was unable to finish the enquiry and it was completed by Mr. <NAME>. Mr. <NAME> was not given any copy of these reports and on the strength of these reports Mr. <NAME> was sought to be removed from <ORG>. <ORG> upheld the decision of <ORG> and quoted a portion of the decision of the Chief Justice of <ORG> which ran as follows: "It does however seem to us that the sub-section requires that as and when an authority is definitely proposing to dismiss or reduce in rank a member of <ORG> he shall be so told and he shall be given an opportunity of putting his case against the proposed action and as that opportunity has to be a reasonable opportunity. It seems to us that the section requires not only notification of the action proposed but of the grounds on which the authority is proposing that the action should be taken, and that the person concerned must then be given a reasonable time to make his representations against the proposed action and the grounds on which it is proposed to be taken........

In our judgment each case will have to turn on its own facts, but the real point of the subsection is in our judgment that the person who is to be dismissed or reduced must know that that punishment is proposed as the punishment for certain acts or omissions on his part and must be told the grounds on which it is proposed to take such action and must be given a reasonable opportunity of showing cause why such punishment should not be imposed."

<ORG> then proceeds to say as follows:

"In the opinion of their Lordships, no action is proposed within the meaning of the sub-section until a definite conclusion has been come to on the charges, and the actual punishment to follow is provisionally determined on. Before that stage, the charges are unproved and the suggested punishments are merely hypothetical. It is on that stage being reached that the statute gives the civil servant the opportunity for which Sub- section 3 makes provision. Their Lordships would only add that they see no difficulty in the statutory opportunity being reasonably afforded at more than one stage. If the civil servant has been through an enquiry under Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, it would not be reasonable that he should ask for a repetition of that stage, if duly carried out, but that would not exhaust his statutory right, and he would still be entitled to represent against the punishment proposed as the result of the findings of the inquiry."

4. The principle laid down in the decision above-mentioned has been correctly summed up by <NAME>, J., in -- ' <CITATION> ', AIR 1933 Mad 54 at p. 56 (B) in the following words:

"In other words in a case governed by Section 240(3) there will be two stages: firstly an enquiry after notice into the charges against the civil servant and this is the rule of natural justice that no person should be condemned without a hearing and secondly after the enquiry is over and a punishment decided on, a further notice in terms of Sub-section (3) informing the civil servant of the action proposed to be taken and giving him an opportunity to show cause against that action and this is a statutory requirement." Although Mr. <NAME>'s case was under the Government of India Act, 1935, the same principles apply under Article 311 of the Constitution.

5. That this is the accepted principle, well-known to <ORG>, appears from a memorandum issued by the Secretary, <ORG>, No. 2187 dated 10-7-1943, EX. "C" to the petition, which states as follows: "The undersigned is directed to invite a reference to Sub-section (3) of Section 240 , <ORG> of India Act, 1935, which requires that no <ORG> servant shall be dismissed or reduced in rank until he has been given an opportunity of showing cause against the action proposed to be taken in regard to him. It has been held that the provisions of the above section are mandatory and contemplate that after the enquiry against an accused officer has been completed, he should be given a further opportunity of showing cause against the particular penalty proposed to be inflicted when such penalty is dismissal, removal or reduction in rank.

In supersession of the orders contained in the Finance Department Memorandum No. 1897-P dated 15-9-1944, <ORG> are therefore pleased to direct that after enquiry against a <ORG> servant has been completed and after the punishing authority has arrived at provisional conclusions in regard to the penalty to be imposed, the accused officer should if the penalty proposed is dismissal, removal or reduction, be supplied with a copy of the report of the enquiring authority and be called upon to show cause, within a reasonable time not ordinarily exceeding one month, against the particular penalty proposed to be inflicted. Any representation in this behalf should be duly taken into consideration before final orders are passed." (6) Mr. <NAME> appearing on behalf of the respondents does not deny that these directions have not been complied with. He however takes two points. Firstly, he says that the petitioner held an officiating appointment. In other words, his substantive rank was that of an Assistant Inspector of Police but he had been officiating in a higher rank. He therefore argues that the reversion to his original and substantive rank does not come within the category of the expression 'reduction in rank' and therefore Article 311 does not apply.

The answer to this is that "Reduction in rank" under Article 311 , must be in the nature of a punishment or penalty. In the case of a person officiating in a higher post, if he is reverted to his original post in the normal course, (for example for inefficiency) there is no question of a punishment or penalty being imposed. But it is quite a different thing if he is degraded or reverted to his original rank as a punishment for having committed some offence, or for indiscipline, in sub-ordination or misconduct. Such a reversion would act as a bar to future promotion, and must be treated as a 'Reduction in rank'. This view is supported by a decision of <ORG> in the case of--' <CITATION> ', AIR 1952 Nag 288 (C).

7. Mr. <NAME> has drawn my attention to the Police Regulations, and it appears that Assistant Sub-Inspectors are in some cases permitted to act as Sub-Inspectors in an officiating capacity. They are then permitted to act as probationers and are finally confirmed in the superior rank. In Chapter 12, Rule 758 (p. 759) of the Police Regulation, Bengal, such a step is described as "promotion" If that is so, then to send a <ORG> servant back to his original rank as a punishment for an offence is certainly the reversed process of promotion and I do not see that it can be characterised as anything excepting a reduction in rank. The second point of Mr. <NAME> was that the Police Regulation, by which the petitioner is governed, is saved by Article 313 and therefore Article 311 has no application. There is no substance in this argument. Rules and Regulations which are saved by Article 313 are not necessarily exempt from the provisions of Article 311 until the provisions of any pan of the Constitution expressly make it so. I hold therefore that under Article 311(2) of the Constitution read with Rule 55 of the C. S. (C. G. A.) Rules, the petitioner is entitled to have a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.

Under these provisions of law, the procedure followed should be as follows: A civil servant must be told about the charges against him and the punishment or punishments which are proposed to be inflicted in case the charges are proved. Where there is an enquiry, not only must he have an opportunity of contesting his case before the enquiry but, before the punishment is imposed upon him, he must be told about the result of the enquiry and the exact punishment which is proposed to be inflicted for a particular charge which has been proved.

This however is not a procedure which is immutable. There may be such a case where the facts are such and the punishment proposed is such that it would be unnecessary to give the civil servant two chances instead of one. For example, if there was a single charge and the proposed punishment was a single punishment and the civil servant had the amplest opportunity at the enquiry stage to meet the whole case, a second opportunity may not be necessary. That this is so has been expressly recognised by both <ORG> and <ORG> in <NAME>'s case.

In a case however where a number of charges have been made and/or a number of punishments are proposed to be inflicted it is essential that the civil servant must know what charge or charges have been brought home to him and what particular punishment was being sought to be inflicted therefor. Without knowing it, he cannot be said to have had a reasonable opportunity of defending his case.

8. Let me now come to the facts of this case. There were several charges framed against the petitioner, e.g. interpolating a G. D. entry, interpolating a seizure list and implicating the owner of the holster. He was asked to show cause why he should not be dismissed, discharged or degraded or otherwise dealt with. The first respondent carried on his enquiry for nearly a year. On 27-6-1952, he found the petitioner guilty of an attempt to implicate <NAME> in a criminal case by fabricating evidence. He has come to the conclusion that the seizure list was interpolated but there is no distinct finding as to whether the G. D. entry was interpolated. The punishment which he imposed was as follows:

"He be permanently reverted to his substantive rank of A. S. I. from the date of this order being communicated."

Thus, no opportunity was given to the petitioner to make any representation against the order of his punishment.

Against this order, the petitioner preferred an appeal to the second respondent. The second respondent rejected the appeal. He then proceeded to consider whether the punishments were adequate. On 5-11-1952 he stated as follows:

"In the exercise of my revisionary powers, direct .......... <NAME> (now reverted as A. S. I.) ......to show cause within 14 days why they should not be dismissed from the force......."

9. This order does not set the matter right. The second respondent proceeded upon the footing that the petitioner was rightly reverted and proposed to inflict a further punishment. But, as I have mentioned above, the reverting to the original post, itself required a further opportunity to be given to the petitioner to show cause against it. In fact, Mr. <NAME> appearing for the respondents admitted that in this respect a second hearing had not been afforded at any stage. I do not express any opinion as to whether the second respondent is entitled to enhance the penalty or to inflict a more drastic punishment like dismissal or not. The point for my determination is whether before the order dated 27-6-1952 can be upheld, the petitioner should have an opportunity to show cause why the punishment inflicted by that order should not be passed. Clearly he should have that opportunity. It is only when he has been afforded that opportunity that a valid order! can be passed against him.

10. The Rule must therefore be made absolute and the orders complained of as mentioned above must be quashed and/or set aside. The order dated 27-6-1952 will however be quashed and/or set aside only to the extent of the punishment portion. The petitioner must now be given a further opportunity of considering the result of the enquiry and the punishment which is proposed to be inflicted upon him, and to show cause against it. There will be a Writ in the nature of Mandamus directing the respondents to give the petitioner such an opportunity in the light of the observations made above and not to give effect to the same without hearing the petitioner. I must make it clear that there will be nothing to prevent the respondents from asking the petitioner to show cause why any of the punishments originally mentioned in the 'show-cause' notice (dated 31-7-1951) should not be imposed, including dismissal.

11. There will be no order as to costs.


JUDGMENT

1. Having regard to the terms of the order made in the claim proceedings and to the fact that it was not proved that the plaintiff actually received notice of the claim proceedings, we are of opinion that the plaintiff is not a party against whom an order has been made within the meaning of Section 283, Code of Civil Procedure, and that the order is not conclusive as against him. We do not think the decision of <ORG> Netietom Perengaryproin v. <NAME> 4 M.H.C.R. 472 precludes us from adopting this view, Moreover it seems doubtful whether, having regard to the observations made in the judgment of <ORG> in <NAME> v. Ambika Pershad 15 I.A. 123, this decision is good law. The Bombay and Calcutta <ORG> have adopted a different view from that taken by <ORG> in the case referred to <NAME> v. Dod Nagaya I.L.R. 11 Bom. 114 and <NAME> v. Rathal Das Chatterji I.L.R. 15 Calc. 674. See, however, Surnamoyi Dasi v. Ashutosh Goswami I.L.R. 27 Calc. 714.

2. The second appeal is dismissed with costs.