JUDGMENT <NAME>, J.

1. This litigation arises in connection with an ancient mosque standing on a portion of Holding No. 221 in the Government Khas Mahal of Dihi Panchannagram, near Calcutta. In a proceeding under Reg. II of 1819 between <ORG> as plaintiff and one <NAME> of Kalinga as defendant, the whole holding, then 3 bighas, 11 eottas and 3 chhataka in area (a portion has since been acquired under the Land Acquisition Act ), was declared by <ORG> to be revenue-free as property dedicated long ago to religious uses, i. e., a wake, of which the said <NAME> was the then mutwali. The mosque stood on a portion of this area and the rest of it was let out to tenants, the rents being appropriated for the expenses of the mosque.

2. <NAME> or <NAME> continued to hold this area of land as mutwali of the mosque until his death about seventy years ago, and after him his son, Sheikh <NAME>, succeeded him as mutwali. <NAME> died about fifty years ago, and thereafter his widow <NAME>, assumed the office of mutwali. On October 27, 1802, she executed a deed whereby she purported to nominate her son Mr. <NAME> as her successor in the mutwaliship.

3. Disputes having arisen, the heirs of <NAME> instituted in 1907 a Suit No. 78 of 1907 in <ORG>, on the basis that <ORG> was the secular property of <NAME> and asking for partition thereof. A preliminary decree for partition was actually made in that suit in 1908. On July 18, 1910, a suit No. 48 of 1910 <NAME> was filed in <ORG> with the sanction of the Advocate General under Section 92 of the Code of Civil Procedure of 1908 by seven <NAME>ans as plaintiffs against <NAME> as defendant. It was sought by that suit to obtain the removal of <NAME> from the office of mutwali, for accounts and for settling a scheme for the management of the said properties. The plaint in that suit was subsequently amended on December 15, 1910 :-

(1) By the addition of all the heirs of <NAME> as defendants, who, it was alleged, were claiming the property as their personal property; and (2) by adding a prayer for the declaration that the property in suit was wakf property and not the personal property of the defendants.

4. No sanction of the Advocate General was obtained for these amendments, and apparently the Advocate General had nothing further to do with that suit at any later stage.

5. On September 15, 1911, a petition of compromise was filed in that suit on behalf of plaintiffs Nos. 1, 2, 3, 4, 5 and 7 (i. e., all the plaintiffs except plaintiff No. 6, named Rahimbuksh). The first two paragraphs of the petition were as follows:-

That your petitioners have on consideration of all the circumstances and facts as disclosed in the evidence produced in the case and which the parties may produce on their behalf have decided that it would be to their best interest and in the interest of public for whose benefit the plaintiffs brought this suit to compromise the suit on the following terms and conditions :-

That out of the disputed property the portions shown in the plan herewith, tiled and marked A, B, C, D, measuring 1 bigha 1 cotta 8 cbhattaks, 24 sq. ft. (1 bigha 1 cotta 8 chhattfiks, and 24 square feet) should be declared a valid Mahomedan public religious and charitable endowment, a wakf.

6. The rest of the petition dealt with the appointment of new rautwalis and the future succession to the mutwaliship. On September 15, 1911, the following order was passed on the petition by the District Judge :-

The compromise has now been accepted by all parties to the suit. The terms are net out in the petition filed by the plaintiffs on September 15, to which a plan is attached. My previous order of September 5 refers to a petition filed on behalf of ten defendants.

A permission (petition) has now been filed on behalf of the remaining three defendants.

Let a decree be drawn up in terms of the petition- a copy of the plan above referred to will form a part of the decree.

No order is made as to costs.

7. It would appear that the District Judge's attention was not drawn to the fact that one of the plaintiffs was not a party to the compromise, nor is there anything on the present record to show that the learned Judge's attention was drawn to the nature of the suit as affecting a public religious trust. A decree was drawn up on the compromise petition on September 16, 1911. The effect of the consent decree was to declare by implication that, with the exception of 1 bigha 1 cotta 8 chhattaks 24 square feet, which was admitted to be wakf, the rest of the holding amounting to 2 bighas 9 cottas 10 chhattaks and 16 square feet, was secular property and as such belonged to the heirs of <NAME>, who had been added as party defendants by the amendment of the plaint.

8. Thereafter these heirs alienated most of the latter part of the property, and the present suit was brought on March 2, 1918, by five Mahomedans of the neighbourhood against the heirs of <NAME> and their alienees, as also the original plaintiffs in Suit No. 48 of 1910 or their representatives. They alleged that the partition decree in Suit No. 78 of 1907, as well as the compromise decree in Suit No. 18 of 1910, wore not binding upon them, and they also prayed that the whole of the then area of 3 bighas 8 cottas 3 chhattaks "may be declared wakf property and the defendants restrained from obtaining possession either directly or by realising rents of the said <ORG>."

9. The defence in substance was (1) that the lands in suit were not wakf; (2) that the suit was not maintainable by virtue of Section 92 , Sub-section (1), as no sanction of the Advocate General, had been obtained and the suit was not instituted in <ORG>, and (3) that the plaintiffs were barred by the rule of res judicata.

10. By his judgment dated July 8, 1921, the Subordinate Judge held that the whole of the holding was wakf and that the plaintiffs as worshippers iu the mosque were entitled to maintain the suit in that Court without the Senction of the Advocate General and, that the compromise decree in Suit No. 48 of 1910 was without jurisdiction and not binding upon them, and he accordingly passed a, decree in favour of the plaintiffs.

11. <ORG> on appeal set aside the judgment of the Sub-ordinate Judge. They entertained considerable doubt as to the maintainability of such a suit as this without the sanction of the Advocate General under Section 92 of the Code of Civil Procedure, having regard to Sub-section (2), which has been added to the corresponding Section 539 of the Code of Civil Procedure, but they considered it unnecessary to decide the point, as they were of opinion that the plaintiffs were bound by the rule of res judicata and the suit should be dismissed on that ground.

12. Two questions only have been argued before this <ORG>. The first is whether the suit is maintainable in view of the provisions of Sub-section (2) of Section 92 of the Code of Civil Procedure, 1908; and the second is whether the suit is barred by the rule of res judicata under Explanation 6, Section 11 , Civil Procedure Code.

13. It is urged broadly on behalf of the respondents that all Buits founded upon any breach of trust for public purposes of a charitable or religious nature, irrespective of the relief sought, must be brought in accordance with the provisions of Section 92 , Civil Procedure Code.

14. The short answer to that argument is that the legislature has not so enacted. If it had so intended, it would have said so in express words, whereas it said, on the contrary, that only suits claiming any of the reliefs specified in Sub-section (1) shall be instituted in conformity with the provisions of Section 92 , Sub-section (1).

15. The reliefs specified in Sub-section (1)(a) to (h) do not cover any of the reliefs claimed in this suit unless the words "further or other relief" in Clause (h) can be held to cover them. It is argued that the words "such further or other relief as the nature of the case may require" must be taken, not in connection with the previous Clauses (a) to (g), but in connection with the nature of the suit viz., any relief other than (a) to (g) that the case of an alleged breach of an express or constructive trust may require in the circumstances of any particular case. Their Lordships are unable to accept this argument. First, because the words "further or other relief" must on general principles of construction be taken to mean relief of the same nature as Clauses (a) to (g), Secondly, because such construction would cut down substantive rights which existed prior to the enactment of the Code of 1908, and it is unlikely that in a Code regulating procedure the <ORG> intended without express words to abolish or extinguish substantive rights of an important nature which admittedly existed at that time.

16. It is a sound rule of interpretation to take the words of a statute as they stand and to interpret them ordinarily without any reference to the previous state of the law on the subject or the English law upon which it may hi founded; but when it is contended that the <ORG> intended by any particular amendment to make substantial changes in the pre-existing law, it ie impossible to arrive at a conclusion without considering what the law was previously to the particular enactment and to see whether the words used in the statute can be taken to effect the change that is suggested as intended. For this reason it becomes necessary to consider how the law stood prior to the enactment of Section 92 of' the Code of Civil Procedure of 1908.

17. The first Code of Civil Procedure, Act VIII of 1859, contained no section specially relating to the administration of public trusts of a religious or charitable nature. The Code of 1877 for the first time introduced such a special section, viz., Section 539 , where particular reliefs only were sought in such cases. This was re-enacted in the Code of 1882.

18. Section 92 takes the place of what was Section 539 in the Code of 1882 as well as the Code of 1877, with certain changes, the most material of which are as follows:-

(a) In the relief clauses under Sub-section (1), Clauses (a) and (d), which did not appear in the Codes of 1877 and 1882, are inserted,

(b) Sub-section (2) is altogether new.

19. As regards Clauses (a) and (d), it appears that there had been some divergence of opinion as to whether Section 539 authorized the removal of a trustee or the directing of accounts and inquiries. Most of <ORG> held that the power to appoint a new trustee necessarily involved the power to remove an old trustee. But <ORG> held to the contrary <CITATION> (1894) I.L.R. 17 Mad. 462, f.b. see <NAME> v. Collector of Kaira (1895) I, L, R, 21 Bom. 48.-k.j.r. The <ORG> in 1908 adopt' d the former view, and inserted Clause (a) expressly giving power to remove a trustee, in addition to the power to appoint new trustees (now Clause (b)

20. Accounts and inquiries, though not expressly mentioned in the relief clauses, had been held by some of the <ORG> to be necessarily incidental to the power to remove an old trustee and appoint a new one. That power was expressly inserted by the present Clause (d). But the most important change was made by Sub-section (2) of Section 92 .

21. Under the Code of 1877, as well as the Code of 1882, the question had arisen whether Section 539 was mandatory and therefore all suits claiming any relief mentioned in Section 53 d should be brought as required by that section or whether the remedy provided by Section 539 was in addition to any other remedy that existed under the law for the redress of any wrongful action in connection with a public trust of a charitable or religious nature. Such rights, when claimed on behalf of the public or any section thereof, had been held to be capable of enforcement by a suit under Section 30 of those Codes (now replaced by Order I, Rule 8); and it had also been held that private persons who had individual rights under such trusts could bring suits to enforce such individual rights by an ordinary suit without being obliged to bring a suit of a representative nature, as above mentioned. Great divergence of opinion had arisen in India in this connection, not merely as between the different <ORG>, but between different Benches of the same Court. The resulting uncertainty could only be removed by legislative enactment, and Sub-section (2) of Section 92 was enacted to put an end to this difference of opinion. It accepted and enacted the view which had been taken by <ORG>, as opposed to the view taken by the other <ORG> generally, viz., that a suit which prayed for any of the relief mentioned in Section 92 could only be instituted in accordance with the provisions of that section. The words used in Sub-section (2) are appropriate and sufficient if that was the purpose, but they are insufficient and inadequate if it was intended to make a complete change such as is suggested on behalf of the respondents.

22. Their Lordships see no reason to consider that Section 92 was intended to enlarge tho scope of Section 539 by the addition of any relief or remedy against third parties, i. e., strangers to the trust. They are aware that the Courts in India have differed considerably on the question whether third parties could or should be made parties to a suit under Section 539 , but the general current of decisions was to the effect that even if such third parties could properly be made parties under Section 539 , no relief could be granted as against them. In that state of the previous law, their Lordships cannot agree that the <ORG> intended to include relief against third parties in Clause (h) under the general words "further or other relief."

23. The conclusion is that, inasmuch as the suit out of which this appeal arises did not claim any such relief as is specified in Sub-section (1) of Section 92 , that section was no bar to the maintainability of the suit without the sanction of the Advocate General and in <ORG>.

24. The only other question is whether the suit is barred by the rule of res judicata, i.e., whether the compromise decree of September 15, 1911, in Suit No. 48 of 1910 precludes the present from bringing this suit, it is said that the previous Suit No. 48 of 1910 was instituted under the provisions of Section 92  1927 with the sanction of the Advocate General, and therefore became a representative suit and the decree in that suit, whether by adjudication of the <ORG> or by consent of parties, is binding upon "that section of the public which was represented by the plaintiffs that suit, and therefore upon the plaintiffs in the present suit by virtue of Explanation 6 of Section 11 of the Code.

25. The learned Judges of <ORG> were of opinion that the consent decree of 1911 could not be questioned on the grounds stated by the Subordinate Judge, as there was no want of jurisdiction of the Judge to entertain the suit, or to order the amendment as prayed for, or to direct a decree to be made on compromise of the suit.

26. Their Lordships are unable to concur in this view. It is extremely doubtful whether a decree passed under the circumstances of this case can be held to be res judicata as against any persons other than those who consented to that decree.

27. The case of <NAME> v. <NAME> (1867) I.H.L. Sc. 117 was based on Scottish law and as explained in the case of In re South American and Mexican Company : Ex part Bank of England (1895) 1 Ch. 37, appears to lay down broadly that persons instituting a suit on behalf of the public have no right to bind the public by a compromise decree, though a decree passed against them on contest would bind the public. It is not necessary for the purpose of this case to decide whether the law in India under Section 11 of. the Code of Civil Procedure is the same as so explained. Their Lordships consider that, in so far as the nature of the suit was changed by the amendments mentioned, viz.; by adding strangers to the trust as defendants and by prayers for relief not covered by Section 92 , the suit ceased to be one of a representative character and the decree based on the compromise such as it was, viz., by six only out of the seven plaintiffs in the suit, however binding as against the consenting parties, cannot bind the rest of the public. Section 11 , Explanation 6, has no application to such a case.

28. On both grounds, therefore, the arguments for the respondents fail, and their Lordships will humbly advise <NAME> that the decree of <ORG> be set aside and the judgment and decree of the Subordinate Judge restored, with costs of <ORG> appeal and the costs of this appeal.


CASE NO.: Appeal (crl.) 1092-1093 of 1998 PETITIONER: STATE OF MAHARASHTRA RESPONDENT: SURESH DATE OF JUDGMENT: 10/12/1999 BENCH: G.T. NANAVATI & K.T. THOMAS JUDGMENT:

JUDGMENT 1999 Supp(5) SCR 215 The Judgment of the Court was delivered by <NAME>, J. A gory episode is narrated in this case the gravamen of which is a grisly perpetrated rape and murder of a four year old female child. The rapist had abducted the child from her house and decoyed her to a field at Arvi (in Wardha district of Maharashtra State). After the rape and murder the mangled body of the child was dumped in the field where pulses and cotton were cultivated. The man whom the police challaned as a culprit was convicted and condemned to death penalty by the sessions court but he now stands exonerated as a Division Bench of <ORG> proclaimed him not guilty. The State of Maharashtra is not prepared to reconcile with the clean chit granted to him by <ORG> and hence this appeal by special leave has been filed by the State.

<NAME> is the name of the little child who was subjected to the beastly sexual ravishment. She was endearingly called <NAME> by her kith and kin. She had a brother younger to her the children were living in the family house which is presumably a joint family house. The life of <NAME> was snuffed off on 22.12.1995.

As per the prosecution version the accused (who is respondent in this appeal) was already an accused in another case facing ah allegation that he committed rape and murder of one eight year old female child by name <NAME>. While he was in Jail in connection with that case he came into acquaintance with a prisoner (PW6-Sanjay) who is the brother of <NAME>'s father (PW5-Rameshwar). Both of them were later released from prison. (We are told that respondent was acquitted in that case).

After such release from jail respondent visited <NAME>'s house, and subsequently he paid frequent visits to the said house. During such visits he made himself familiar to <NAME>. On 22:12,1995 respondent went to that house and when he was told that <NAME> had gone out, he left the house. <NAME> was then playing near the gate other house. Respondent would have moved away by alluring the little child to go with him. The fact remains that after respondent left the house in the afternoon no one in that house had seen <NAME> alive.

Respondent took <NAME> to the shop of <ORG>, and later to the shop of <ORG>, and thereafter to a farm whereon pulses and cotton were cultivated. He chose that venue For sexually ravishing that little child and smothering her to death.

As <NAME> was not seen in the house or its precincts till nightfalls the panic-stricken member of her family began to make hectic searches for her. As all such efforts failed her uncle <NAME> went to the police station and reported that <NAME> was missing from that house. Next morning her father <NAME> (PW-5) went to the police station and lodged Ext; 22-complaint in which he expressed strong suspicion against the respondent regarding the disappearance of his child.

Respondent was arrested on the evening of 23.12.95. During interrogation the police came to know that dead body of the child was concealed in a farm. Though a search was made in the night to find out the spot where the body was concealed it did not fructify due to darkness. Hence the police resumed the search operation on the next morning and the spot was pointed out by the respondent wherefrom the dead body of <NAME> was traced out When autopsy was conducted on the body by two doctors of the local hospital a woeful picture of sexual molestation was etched by them. Ext. 68 (Post- mortem Report) contains the data, inter alia, that the vagina was torn down at the perennial region by 1" with irregular lacerations and a fleshy torn portion was found protruding out therefrom. Contusions and abrasions on the labia majora of both sides besides swelling were also noticed by the doctor. There were number of contusions and abrasions on her face also. Dr. <NAME>, Medical Superintendent and Dr. <NAME>, Medical Officer of <ORG>, Arvi, District Wardha, after completing the jointly conducted autopsy reported that death of the child was due to asphyxia by rape and smothering.

There is not even a speck of doubt that <NAME> was kidnapped from her house and she was raped arid killed by someday on the evening of 22.12.1995. In fact <ORG> and <ORG> concurrently found the aforesaid point affirmatively. The whole endeavour was therefore confined to the question whether the crime was committed by the respondent.

The trial court and <ORG> focused on the circumstances which prosecution presented through the evidence for proving that the culprit in the ghastly infanticide was the respondent himself and none else. The Sessions Judge found that all those circumstances were established and they formed themselves into a completed chain unerringly pointing to the guilt of the respondent. But <ORG> of <ORG> differed from the findings of <ORG> regarding some of the circumstances and that resulted in exoneration of the respondent.

The circumstances which prosecution presented can be recast as follows (1) Respondent visited the house of <NAME> at about 3.30 P.M. and after he left the house it was realised that <NAME> also disappeared; (2) PW-8 Mahadeo saw the accused and a female child together in his shop at about 4.30 P.M. on the same days; (3) PW-14 Motiram saw them together in his shop at about 4.00 P.M.; (4) A little later PW-3 Sayyed Niyamat saw them walking along the road; (5) Respondent after his arrest disclosed to PW.26 (Police Inspector of Arvi Police Station) that the dead body of the child was concealed in the farm and he offered to hand it over. Pursuant thereto the spot was pointed out by the respondent wherefrom the dead body was recovered; (6) PW-20 Dr. <NAME> stated that the person who caused the injuries on the vagina of the deceased child would have sustained injuries on his male organ. When respondent was medically examined on 25.12.1995 by PW-22 Dr. <NAME> it was noticed that his glands penis was swollen with multiple tiny punctuated abrasions besides abrasions on the posterior aspect of both elbow joints. According to the doctor those injuries could have been caused 48 hours earlier than the time of his examination; (7) Stains of human blood and semen were detected on the under-clothes of the accused when he has arrested.

<ORG> of <ORG> was not disposed to rely on the evidence of me three witnesses who claimed to have seen me respondent and the girl together though their evidence was found reliable by the trial court. Nor did <ORG> concur with <ORG> finding regarding recovery of the dead body as sequel to the information supplied by the respondent. <ORG> declined to take the injuries which the doctor noticed on the person of the respondent as an incriminating circumstance on the premise that it is not a conclusive circumstance. <ORG> sidestepped the circumstance that semen and blood were detected on the under-clothes of the accused on the premise that there was delay in seizing those wearing apparels.

The evidence of PW-3 <NAME> Mahadeo and <NAME> (PW-14) needs scrutiny by us because acceptability of that evidence will have a decisive impact on the final conclusion of this case.

<NAME> claimed to have seen the respondent with a. little girl at his grocery shop around 4 P.M. on 22.12.1995. He said that the man with the girl had purchased some peppermint from his shop presumably for appeasing the girl as she was then crying. His reason for remembering his purchase was that next he heard about the murder of a little girl and he visited the house of the girl on 24.12.1995, and identified the dead body as that of the same girl. In a test identification parade conducted by PW-26 Magistrate he identified the respondent as the person who accompanied the child. <NAME> gave evidence that when he was returning from his Friday Namaz he saw a young man holding a crying girl around 4.00P.M. He too gave almost the same reason for remembering it that when he heard next day about the murder of a little girl he had some doubt whether it was the same crying girl. He also identified the respondent in the test identification parade.

<ORG> Motiram has a betel shop in the locality. His evidence is that a young man wearing pant and shirt visited his shop at about 4.30 p.m. and bought some "Kharra" from the shop. He remembered it as a little girl was with him who was found crying then. When he heard next day about the murder he felt suspicious because the young man whom he saw the previous day in his shop was a total stranger in the locality. So he informed the police about it. He too was called in the Test Identification Parade wherein he identified the respondent as the person whom he saw with the girl.

If a criminal court is to view the testimony of the aforesaid three witnesses as unnatural it would be easy to brush it aside with the stereotyped reasoning that those persons had no cause to remember having seen the man with the girl accompanying him. Such a reasoning overlooks the broad aspect that a human mind, on hearing about any shocking incident, would have the tendency to recollect any previous event which could have had a connection with that incident If as a matter of fact those witnesses had occasion to see a crying girl of that age on the very day of the gruesome episode as happened in this case, there is nothing improbable in those witnesses remembering the person who was seen in the company of that girl. If they had immediately informed the police that they noticed a similarly aged girl crying in the company of an utter stranger of that locality that cannot be brushed aside as a doubtful conduct. Either the three witnesses concocted the story falsely or what they said must be true. Why should they concoct it falsely. We are not told of any reason whatsoever for those three witnesses to bother themselves to concoct such a canard.

It seems that a minor discrepancy in their evidence had affected their credibility before <ORG>. They said that they went to the police station on 24.12.1995, whereas PW-26 Police Inspector said that they visited me police station only on 25.12.1995. We do not attach any significance to the aforesaid discrepancy as PW-26 should have been more correct because he was speaking with the help of investigation records while the witnesses would have spoken from their memory only. Another reason advanced by <ORG> is that when PW-3 <NAME> went to the bereaved house he did not inform anyone in that family as to what he saw earlier. But PW-3 himself gave an explanation for it that as members of that family were then in a shock he did not venture to tell them about it at that occasion. Here also the question is not whether PW-3 should have told them despite his hesitation but whether the witness had chosen to adopt such a reticence in a situation like that. It is not for the <ORG> to suggest that he should have divulged it to the members of the bereaved family despite his own thinking about it At any rate we are not impressed by the aforesaid reasoning for rejecting the testimony of an important witness like PW-3.

<ORG> then advanced a theory that there is "an inherent incredibility in the evidence" on the premise that a culprit kidnapping a minor girl with sinister design would normally take the precaution not to be seen by any other person on the way, but in this case the culprit along with the girl had moved from place to place in the town. We are unable to appreciate such a reasoning as proposition of human conduct. For considering that reasoning it must be remembered that <NAME> would certainly have been abducted by some body (even assuming that it was not this respondent) and that person had taken the abducted girl from her house up to the farm. Unless it is suggested that there was another alternative and safer route for the culprit to take the girl unnoticed by any shopkeeper or even a pedestrian there in no rationale in the reasoning that there is "inherent incredibility" in the version that respondent would have taken the girl through this route.

The last reasoning of <ORG> is based on a criticism of the modes adopted by the Executive Magistrate who held the test identification parade. The aforesaid criticism was based on the evidence of two witnesses who said that the accused were taken on foot from police station to the place where the parade was conducted and that their faces were not covered during such transit.

Ext 17 is the minutes of the test identification parade conducted by the Magistrate who himself was examined as PW-2. It contains the details of the steps adopted by him. Seven other persons were kept ready in the room and the witnesses were kept in another room from where they could not see the suspect Thereupon the suspect was brought from the lock up with the help of two respectable persons and all precautions were taken that the witnesses could not see the suspect during such transit. Then me suspect was permitted to stand anywhere among the 7 persons. It was thereafter that the witnesses were brought with the help of the same respectable persons and the witnesses were then asked to identify the person whom they saw on the crucial day. If potholes were to be ferreted out from the proceedings of the magistrates holding such parades possibly no test identification parade can escape from one or two lapses. If a scrutiny is made from that angle alone and the result of the parade is treated as vitiated every test identification parade would become unusable. We remind ourselves that identification parades are not primarily meant for the court. They are meant for investigation purposes; The object of conducting test identification parade is two fold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. So the officer conducting the test identification parade should ensure that the said object of the parade is achieved. If he permits dilution of the modality to be followed in a parade, he should see to it that such relaxation would not impair the purpose for which the parade is held, vide <CITATION> ,  2 SCO 128 and <CITATION> ,  3 SCC 86.

When we scanned through. Ex. 17 minutes of the test identification parade, we feel that the safeguards adopted by PW-2 Executive Magistrate were quite sufficient for ensuring that the parade was conducted in a reasonably foolproof manner. We feel that <ORG> niggled on unimportant details and came to the wrong conclusion that the test identification parade was irretrievably vitiated. The reasons by which the testimony of those three witnesses had been jettisoned by <ORG> were fatuous and we cannot support them.

One of the formidably incriminating circumstances against the accused was that the dead body was recovered as pointed out by the respondent. The statement of the respondent which led to the recovery of the dead body has been incorporated in Ext. 79 and the admissible portion of it reads thus :

"Her dead body is kept concealed in the field; I will take it out and produce the same; come with me."

But unfortunately <ORG> of <ORG> did not rely on the above circumstance on a very fragile reasoning. The first limb of that reasoning was based on a mistake committed by PW-3 <NAME> in his evidence when he said that he saw the dead body of the child on 23,12.1995. Much strain is not required in holding that what PW-3 said should have been understood as 24.12.1995. The second limb of the reasoning is that two other possibilities could not have been ruled out. Of which one is that respondent would have seen someone else placing the dead body at that spot, and the second is that respondent would have been told by somebody else that the dead body was placed there:

We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was conceded by himself. One is that he himself would have concealed it Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities me criminal court can presume that it was concealed by the accused himself. This is because accused is the only person who can Offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well justified course to be adopted by the criminal court mat the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act.

It is regrettable that the Division Bench had practically nullified the most formidable incriminating circumstance against the accused spoken to by PW-22 Dr. <NAME>. We have pointed out earlier the injuries which the doctor had noted on the person of the accused when he was examined on 25.12.1995. The significant impact of the said incriminating circumstance is that the accused could not give any explanation whatsoever for those injuries and therefore he had chosen to say that he did not sustain any such injury at all. We have no reason to disbelieve the testimony of PW-22 Dr. <NAME>, False answer Offered by the accused when his attention was drawn to the aforesaid circumstance renders that circumstance capable of inculpating him. In a situation like this such a false answer can also be counted as providing "a missing link" for completing the chain.

It is disconcerting that a case like his in which the prosecution has presented such reliable and formidable circumstances forming into a completed chain and pointing unerringly to me irresistible conclusion mat the little girl <NAME> was raped and killed by none other than the respondent himself, ended in unmerited acquittal from <ORG> of <ORG> unfortunately became a casualty in this case when the High Curt side-stepped all such circumstances and exonerated the culprit of such a grotesque crime.

We, therefore, set aside the impugned judgment and restore the conviction passed by the trial court. Regarding sentence we would have concurred with <ORG> view that the extreme penalty of death can be chosen for such a crime, but as the accused was once acquitted by <ORG> we refrain from imposing that extreme penalty in spite of the fact that this case is perilously near the region of "rarest of the rare cases" envisaged by the Constitution Bench in <CITATION> ,  2 SCC 684. However, the lesser option is not unquestionably foreclosed and so we alter the sentence, in regard to the offence under Section 302 , to imprisonment for life. The sentences imposed by the trial court on all other counts would remain unaltered. The bail bond shall stand cancelled. We direct the respondent to surrender to bail. We also direct the Sessions Judge, <NAME> to take immediate and necessary steps to put the accused in jail if he is not already in jail, for undergoing the sentence imposed on him.


PETITIONER: <ORG> Vs. RESPONDENT: CITY OF JABALPUR CORPORATION DATE OF JUDGMENT11/03/1977 BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. SHINGAL, P.N. CITATION: 1977 AIR 955 1977 SCR (3) 182 1977 SCC (2) 472 ACT: Central Provinces & Berar Municipalities Act, 1922 s. 84(3)--Scope of--Act self-contained Code-"Objec- tions regarding assessment, levy etc. of octroi duty shall not be taken in any manner or by any other authority than is provided in the Act"--Suit in a Civil Court--If lies. HEADNOTE: The Central Provinces and Berar Municipalities .Act, 1922, empowers a municipality to assess and recover octroi duty on goods brought within the municipal limits for sale. consumption and use therein. Under the Act an appeal against assessment or levy or refusal to refund any tax lies to a designated official. A person aggrieved by the decision of the appellate authority has a right to apply to <ORG> for revision. The Act also provides for refer- ence to <ORG> on questions like liability to as- sessment or principles of assessment and so on. Section 84 (3) lays down that "no objection shall be taken to any valuation. assessment or levy nor shall the liability of any person to be taxed or assessed be questioned in any other manner or by any other authority than is provided in the Act." Rule 14(b) of the Rules framed under the Act provides that any person importing or bringing any dutiable articles within the octroi limits of a municipality without paying the duty or without giving a declaration to the octroi Moharrir, shall be liable to pay double the duty and shall in addition be liable to be prosecuted for evasion of duty. The plaintiffs imported within the municipal limits for sale in their retail shops articles manufactured by them in their factories situated at different places in the country. They paid the octroi levied by the municipality at a certain rate. But Sometime later the municipality reopened and revised the assessment and charged octroi at a different rate. It also levied double the duty by way of penalty on the ground that the plaintiffs had intentionally evaded payment of duty on the goods. The appellate author- ity modified the decision of the municipality but upheld the assessment of double duty. The plaintiffs' revision appli- cation was rejected by <ORG>. The plaintiffs paid the duty and penalty under protest and filed a suit for recovery of the amount on the ground that the municipality was not entitled to recover the amount of octroi duty and penalty. Overruling the defendant munic- ipality's objection as regards the civil court's jurisdic- tion to entertain the suit the trial court decreed the suit. On appeal, <ORG> held that the defendants were entitled to revise and reopen the assessment and that the reassessment of duty fixed in appeal by the appellate au- thority could not be questioned by the plaintiffs in a civil court. In appeal it was contended in this Court by the plain- tiffs that s. 84(3) may bar a suit to challenge an act which was within the purview of the Act, but it could not bar a suit to challenge an act which was outside the Act or the Rules and since in this case the defendant had no power to revise or reopen the assessment. its action was wholly lacking in jurisdiction and so the suit was competent. Dismissing the appeal, HELD: Since s. 84(3) expressly prohibits a challenge to valuation, assessment or levy "in any other manner ............ than is provided in this Act" and since the Act has devised its own special machinery for inquiring into and adjudicating upon such challenges, the common remedy .of a suit stands necessarily cxcluded and cannot be availed of by a person aggrieved by an order 183 assessment to octroi duty. Similarly the sub-section excludes expressly the power of "any other authority than is provided in this Act" to entertain an objection to any valuation, assessment or levy of octroi. This art of the provision-is in the nature of ouster of jurisdiction of civil courts, at least by necessary implication, to enter- tain an objection to any valuation, assessment or levy..[187 A] 1. Two of the propositions bearing on the construction of statutes which expressly or by necessary implication bar the jurisdiction of civil courts stated in <CITATION>  3 SCR 662 and which are relevant for the purposes of this case are: (i) where the statute gives finality to the orders of special tribunals the civil court's jurisdiction must be held to be excluded if there is an adequate remedy to do what the civil courts would normally do in a suit. Such provision, howev- er, does not exclude cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure, (ii) questions of the correctness of the assessment, apart from its constitution- ality, are for the decision of the authorities and a civil suit does not lie. if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act, In either case the scheme of the par- ticular Act must be examined because it is a relevant en- quiry. [189 D-F] (a) In the instant case, the various provisions of the Act show in the first place that the municipality possesses the right and the power to assess and recover octroi duty and double duty on goods brought within the municipal limits for sale, consumption or use therein. The circumstance that the municility might have acted in excess of or irregularly in the exercise of that power could not support the conclusion that the assessment or recovery of the tax was without jurisdiction. If the appropriate authority, while exercis- ing its jurisdiction and powers under the relevant provi- sions of the. Act, holds erroneously that an assessment already made can be corrected or that an ,assessee is liable to, pay double duty, it cannot be said that the decision of the authority is without jurisdiction. [192 E-F] (b) Both the Act and the Rules contain provisions ena- bling the aggrieved party to challenge an illegal assessment or levy of double duty. By reason of the existence and availability of those special remedies, the ordinary remedy by way of a suit would be excluded on a true interpretation of s. 84(3) of the Act. [193 H] (c) Levy of double duty, though not justified by the terms of r. 14(b) goes to the correctness of the levy and not to the jurisdiction of the assessing authority. Assuming that neither of the two eventualities mentioned in r. 14(b) occurred and, therefore, there was no justification for imposing double duty, the error could be corrected only in the manner provided in the Act and by the authority pre- scribed therein. The remedy by way of a suit is barred. [193 A-B] (d) The suit for refund of double duty or revised duty is not maintainable because in the first place the assess- ment was made by the authority duly empowered to do so and secondly the authority was acting under the Act while revis- ing the assessment and imposing double duty. It had the power to assess and levy double duty. If it exceeded that power it acted wrongly, but not without jurisdiction. [193 C-D] (e) It is not correct to say that the Act protects correct assessments only and that every incorrect or wrong order of assessment can be challenged by a suit though the statute gives it finality and provides full and effective remedies to challenge it. Except in matters of constitu- tionality and the like a selfcontained Code must have priority over the common means of vindicating rights. If the appropriate authority, while exercising its jurisdic- tion anti power under the relevant provisions of the Act. comes to an erroneous conclusion it cannot be said that the decision is without jurisdiction. [193 F.-G] <NAME> and Others v. The State of Madhya Pradesh  3 SCR 662 <CITATION>  1 SCR 64 applied. 13--240SCI/77 184 <ORG> v. <ORG>, Dha- mangaon,  3 SCR 499, <NAME> v. <NAME>, AIR 1970 S.C. 1002 and <CITATION> [19541 2 SCR 273, 284 distinguished. <ORG> v. <NAME>  6 C.B. (N.S.) 336. <CITATION> , 67 I.R. 222, <NAME> v. <ORG>,  A.C. 368, <CITATION> .  2 SCR 603 and Firm and Illuri Subbaya Chetty & Sons. v. The State of Andhra Pradesh,  1 SCR 752 referred to. (f) The instant case does not fall within the proposi- tions in <NAME>'s case because s. 84(3) not merely gives finality to the orders passed by the special tribunal but expressly provides that such orders shall not be questioned in any other manner or by any other authority than is pro- vided in the Act. [194 B] (g) In the instant case, the plaintiffs availed them- selves of the remedies provided under the Act and. succeeded to art extent. Having exhausted their remedies under the Act and having been benefited by the appellate decision, they turned to the civil court to claim refund. This is impermissible under s. 84(3). [194 F-G] JUDGMENT:

CIVIL APPELLATE JURISDICTION:CIVIL Appeal Nos. 1923-1924 of 1972.

(From the Judgment and Decree dated 25-10-1957 of <ORG> in First Appeal No. 138/52) <NAME>, <NAME> and <NAME>, for the appellant in C.A. No. 1923/72 and respondent in CA No. 1924/72.

<NAME>, for the respondent in CA No. 1923/72 and for appellant in CA 1924/72.

CHANDRACHUD, J.--These are cross appeals arising out of a judgment rendered by <ORG> in First Appeal No. 138 of 1952 modifying the decree passed by the First Additional District Judge, Jabalpur in Civil Suit No. 6-B of 1949. It would be convenient to refer to the parties as plaintiffs and defendants, plaintiffs being <ORG> and the defendants being <ORG>.

Plaintiffs are a limited company having their registered office at Calcutta. At the relevant time they had their factories at Batanagar in West Bengal, Batapur in West Punjab, Palsia-Digha in Bihar and Faridabad near Delhi. The sale's organisation of the plaintiffs is situated at Cal- cutta, and that organisation sells manufactured articles through the Company's retail shops situated in different parts of India and Pakistan. Three such retail shops were situated at Jabalpur.

In respect of the articles which were imported by the retail shops at Jabalpur within the limits of the then <ORG> between April 1, 1943 and March 31, 1945 the plaintiffs had paid to <ORG> a sum of Rs. 16,528 odd as control duty. This duty was assessed by <ORG> on an amount which was 40% less than the retail price of the goods which were brought within the municipal limits. In the year 194.6-47 <ORG> decided to reopen and revise. the assessment by charging the octroi duty on an amount which was only 6-1/4% less than the retail price of the goods. <ORG> further decided to levy double the duty by way of penalty for the aforesaid period on the ground that the plaintiffs bad intentionally evaded the payment of the duty payable on the goods. Plaintiffs preferred an appeal against the decision of <ORG> to the Sub- Divisional Officer, Jabalpur who by an order dated July 14, 1948 modified the decision of <ORG> by permitting them to charge the octroi duty on an amount which was less by 12-1\2 % than the retail price of the goods. The Sub-Divisional Officer however upheld the assessment of double duty. The revision application preferred by the plaintiffs to <ORG> was rejected on October 4, 1948 on the ground that it was not maintainable. In conformity with the appellate order, but under protest, plaintiffs paid to <ORG> a sum of Rs. 21,071-1-3 on August 6, 1948. Defendants demanded a further sum of Rs, 10,604-2-6 alleging that they had over- looked asking for it through mistake. Plaintiffs paid that amount too on September 22, 1948 under protest. On June 20, 1949 they filed a suit against <ORG> for recovery of the total amount of Rs. 31,675-3-9 with interest at 6% per annum on the ground that the defendants were not entitled to recover the amount by way of octroi duty and penalty. During the pendency of the suit <ORG> was succeeded by <ORG> who were substituted as defendants to the suit. <ORG> decreed the suit to the extent of Rs. 32,629-7-0 calculating the interest at 4%, holding that the defendants could not charge octroi duty on an amount arrived at by anything less than 40% from the retail sale price, that the recovery of octroi duty by deducting a sum of 12-1/2% only from the retail price was illegal and that the defendants were not justified in recovering double duty by way of penalty since the plaintiffs had not intentional- ly evaded the payment of proper duty. Defendants had raised contentions both as regards the jurisdiction of <ORG> to entertain the suit and as regards limitation but <ORG> rejected those contentions and held that it had jurisdiction to entertain the Suit and that it was not barred by limitation.

In appeal <ORG> held that the defendants were entitled to revise and reopen the assessment and that the re-assessment. of octroi duty which was ultimately fixed in appeal by the Sub-Divisional Officer could not be ques- tioned by the plaintiffs in <ORG>. On the ques- tion of limitation <ORG> held that applying the special period of limitation provided in s. 48 of the Cen- tral Provinces and Berar Municipalities Act, 1922 the suit was within limitation as regards the payment made by the plaintiffs on September 22, 1948 but that it was barred by limitation as regards the payment made on August 6, 1948. The suit in regard to the amount paid to <ORG> in September 1948 was held to be within limitation on account of the intervening summer vacation during which the <ORG> were closed. According to <ORG> the exaction of the double duty being beyond the' powers of the defendants, the special period of limitation was not attracted and the plaintiffs were therefore entitled to recover the sum paid by way of double duty. In the result <ORG> passed a decree in the sum of Rs. 24,103-13-3 which, according to it, represented the double duty wrongly recovered by the defendants from the plaintiffs. <ORG> has granted to both the parties a certificate to file an appeal to this Court under art. 133(1 ) of the Constitution and both par- ties being partly aggrieved by the decree of <ORG> have filed cross appeals.

The first question for consideration is whether the civil court has jurisdiction to entertain the suit brought by the plaintiffs. It is undisputed that <ORG> had the power under s. 65(1)(e) of the Act of 1922 to impose octroi tax on the goods brought within the Munici- pal limits for sale, consumption or use therein. Under rule 6(b) framed by <ORG> in exercise of the powers conferred by ss. 71, 76 and 85 of that Act, octroi duty was payable on the "current price of articles" which is equivalent to the cost price of the articles to the importer plus the cost of carriage and not the price prevailing in the local market. Prior to 1940, plaintiffs used to submit to the defendants an invoice relating to the imported goods wherein the cost price used to be shown by deducting from the retail price the aggregate amount of expenses amounting to 40%. Defendants later disputed the deduction claimed by the plaintiffs and informed the latter by a letter of May 7, 1940 that octroi duty was leviable on the cost price of the goods as shown in the invoice plus the freight charges. Plaintiffs accepted that view and started showing in the invoices the cost price of the articles and the freight charges. Defendants used to assess octroi duty on those invoices until the dispute giving rise to the present suit arose during the year 1946-47, when the basis for charging the duty was fixed at 61/4% less than the retail price of the goods and the assessments already made were reopened with a view to revising them.

Section 83(1) of the Act of 1922 provides for appeal against the assessment or levy of any tax under the Act to the Deputy Commissioner or to such other officer as may be empowered by <ORG> in that behalf. Section 84(3) of the Act which bears directly on the question of jurisdiction reads thus:

"84(3) No objection shall be taken to any valuation, assessment or levy nor shah the liability of any person to. be assessed or taxed be questioned, in any other manner or by any other authority than is provided in this Act."

It is plain from this sub-section that any valuation, as- sessment or levy and the liablity of any person to be as- sessed or taxed can be questioned only in the manner pre- scribed by the-Act and by the authority mentioned in the Act and in no other manner or by any other authority. Since the sub-section expressly prohibits a challenge to a valuation, assessment or levy "in any other manner .... than is provided in this Act" and since the Act has devised its own special machin- ery for inquiring into and adjudicating upon such chal- lenges, the common remedy of a suit stands necessarily excluded and cannot be availed of by a person aggrieved by an order of assessment to octroi duty. Similarly, the sub-section excludes expressly the power of "any other authority than is provided in this Act" to entertain an objection to any valuation, assessment or levy of octroi.- This part of the provision is in the nature of ouster of the jurisdiction of <ORG>, at least by necessary impli- cation, to entertain an objection to any valuation,,assess- ment or levy. This is the evident intendment, meaning and implication of the provision.

In <ORG> v. Hawkesford(1) <NAME> referred to various classes of cases in which the jurisdiction of ordinary courts is excluded; the third class of such cases being "where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it." The view of <NAME>, that with respect to that class of cases the party must adopt the form of remedy given by the statute and no other, was accepted by <ORG> in <CITATION> (2) and by <ORG> in <NAME> v. <ORG>). In <ORG>) case <ORG> was dealing with the provisions of the Sea <ORG> Act, 1876 section 186 whereof gave a right of appeal to the person aggrieved by any decision or order passed by the <ORG> Officers under that Act. Section 191 further gave the aggrieved person a right to make an application to <ORG> for revision of the appellate decision or order. The last paragraph of section 188 provided: "Every order passed in appeal under this section shall, subject to the power of revision conferred by section .191, be. final". The.re was no express exclusion of the civil courts' Juris- diction to entertain a suit challenging an order passed by a <ORG> Officer but <ORG>, while recognis- ing that the exclusion of the jurisdiction of civil courts was not to be readily inferred and that such exclusion must either be explicitly expressed or clearly implied, observed that looking at the last paragraph of section 188 of the Sea <ORG> Act it was difficult to conceive what further chal- lenge of the order was intended to be excluded other than a challenge in <ORG>. If a provision merely giving finality to an order could be construed as ousting the civil <ORG>'s jurisdiction, s. 84(3) of the Act, which is far more expressive, can legitimately be construed to have the same effect. It excludes in terms a challenge to the various things therein mentioned, in any other manner or by any other authority than is provided in the Act. But counsel for the plaintiffs contends that s. 84(3) cannot oust the civil <ORG>'s jurisdiction to entertain the present suit because the defendant have no power at all either under the Act or under the (1)  6 C.B. (N.S.) 336.

(2) 67 I.A. 222.

(3) [1919] A.C. 368.

Rules framed thereunder to reopen or revise an assessment to octroi duty. An assessment once made is final subject to the remedies which the Act provides to the aggrieved party and since, according to the counsel, the reopening of assessment is wholly without jurisdiction the suit to chal- lenge it is competent. The argument, in other words, is that s. 84(3) may bar a suit to challenge an act which is within the purview of the Act or the Rules but it cannot bar a suit to challenge an act which is outside the Act or the Rules and is therefore wholly lacking in jurisdiction. In support of the contention that the civil Court has jurisdiction to entertain the suit plaintiffs'rely princi- pally on the decisions of this Court in <CITATION> , Dhamangaon(1), <ORG> v. Malkapur Municipality() and <CITATION> (3). The appellants in <NAME> case filed a suit for recovery of excise tax paid by them under s. 66(1)(b) of the Central Provinces Municipalities Act, 1922 on the ground that after the coming into force of s. 142A of the Government of India Act, 1935 till January 25, 1950 a tax in excess of Rs. 50/--per annum could not be imposed by the Municipal Commit- tee and that after the coming into force of the, Constitu- tion, imposition of tax in excess of Rs. 250/- per annum was tinconstitutional. <ORG> decreed the suit but on appeal <ORG> held that the suit was bad for non- compliance with s. 48 of the C.P. Act according to which a suit for anything done or purported to be done under the Act had to be instituted within six months from the date of the accrual of the cause of action. In answer <ORG> contended that apart from the provisions of s. 48, the suit was barred by s. 84(3) under which no objection could be taken to any assessment in any other manner than is provided in the Act. That section is the very same provi- sion under which the present suit, according to the defend- ants, is said to be barred from the cognisance of the civil Courts. It was held by this Court by majority that since <ORG> had no authority to levy a tax beyond what was permitted by s. 142A of the Government of India Act or art. 276 of the Constitution, the assessment proceedings were totally void insolaf as they purported to levy a tax in excess of the constitutionally permissible limits and therefore the suit was maintainable. The question involved in <ORG> v. <NAME> (supra) was similar, the contention being that the recoveries which were made in contravention of s. 142-A of the Government of India Act, 1935 and art. 276(2) of the Constitution were wholly without jurisdiction and therefore a suit for refund of tax recovered by the Municipality in violation of the constitutional provisions was maintainable. That contention was accepted by this Court which treated the matter as concluded by the decision in <NAME> (supra) case.

(1) [1965] 3 S.C.R, 499.

(2) A.I.R. 1970 S.C. 1002.

(3) [1968] 3 S.C.R. 662.

<CITATION> (supra) the position was similar to that in the two cases noticed above. Section 17 of the Madhya Bharat Sales Tax Act provided that no assessment made and no order passed under the Act or the Rules made thereunder shall be called in question in any Court. It was conceded by the State Government that the sales tax levied on the appellants was unconstitutional in view of art. 301 of the Constitution but it was contended that the civil Court had no jurisdiction to entertain the appellants' suit for refund of the tax in view of s. 17 of the Act. After an examination of various decisions including those to which we have referred in this judgment <NAME>, J., who spoke for <ORG> formulated seven propositions bearing on the construction of statutes which, expressly or by necessary implication, bar the jurisdiction of civil Courts. It is unnecessary to examine each One of those propositions for the short reason that as in the case of <NAME> and <NAME>, (supra) so in the case of <NAME> (supra) the recovery of sales tax was unconstitutional and the suit, for that reason, was held maintainable. Attention must, however, be drawn to propositions (1), (4) and (6). The 1st proposition states that where the statute gives-a finality to the orders of the special tribunals <ORG> jurisdiction must be held to be excluded if there is adequate remedy to do what <ORG> would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. The 4th proposition is that when a provision is already declared unconstitutional or the con- stitutionality of any provision is to be challenged, a suit is open. The 6th proposition which bears more appropriately on the instant case says that questions of the correctness of the assessment, apart from its constitutionality, are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. The plaintiffs' contention that the suit is not barred from the cognizance of the civil Court is effectively an- swered by these propositions but even so, a discussion of the jurisdictional issue will not be complete without reference to a decision rendered by a seven-Judge Bench of this Court in <CITATION> (1). The appellants therein were assessed to sales tax on sales which were treated by the Sales Tax authorities as 'inside sales' but which according to the decision in <CITATION> (2) were 'outside sales' and therefore non-taxable under the Bombay Sales Tax Act, 1946. After the decision in Bengal Immunity(2) case which came on September 6, 1955 the appellants discovered that they were illegally subjected to sales tax and since the period prescribed by the Act for adopting the remedies thereunder had expired, the appellants flied a suit for recovery of the sales tax illegally collected from them in respect (1)  S.C.R.

(2) [1955] 2 S.C.R. 603.

of the outside sales. The State of Bombay contended that the suit was. barred by s. 20 of the Act which provided, to the extent material, that no assessment made and no order passed under the Act or the Rules. shall be called into question in any civil <ORG>. It was held by this. <ORG> that s. 20 protected all assessments made under the Act or the Rules made thereunder and that the protection was wide enough to cover assessments made by the appropriate author- ities under the Act whether the assessments were made cor- rectly or not. Observing that if the appropriate authority while exercising its jurisdiction and powers under the relevant provisions of the Act comes erroneously to the conclusion that a transaction which is an outside sale is not an ,outside sale and proceeds to levy sales tax on it its decision cannot be said to be without jurisdiction, the <ORG> held that the suit was barred from the cognizance of the civil <ORG>. In coming to this conclusion,the <ORG> relied upon the decision in Firm and <NAME> & sons v. The state of Andhra Pradesh(1) which had taken the view, while interpreting a similar provision in s. 18A of the Madras General Sales Tax. Act, that the expression "any assessment made under this Act" was wide enough to cover all assessments made by the appropriate authorities under the Act, whether the said assessments were made correctly or not. The decision in Bharat Kala Bhandar (supra) was brought to the notice of the <ORG> in <ORG> (supra) case but that decision was distinguished on the ground that the provision which fell for construction therein was worded differently and as observed in <ORG> (supra)' "deci- sions on other statutory provisions are not of materrial assistance, except in so far as general principles of con- struction are laid down". With great respect, the decision in Bharat Kala Bhandar (supra) is distinguishable for the weightier reason that the tax recovered in that case was unconstitutional and no provision of a statute could' be construed as laying down that no <ORG> shall have jurisdic- tion to order a refund of a tax collected in violation of a constitutional provision. If there were a provision which so provided or which could be so construed, that provision would itself be unconstitutional.

In Kamla Mills (supra) case it was observed that if a statute creates a special right or liability, pro- vides for the determination of that right or liability by tribunals specially constituted in that behalf and lays down that all questions in regard to that right or liability shall exclusively determined by the tribunals so constitut- ed, it becomes pertinent to enquire whether remedies nor- mally associated with actions a civil <ORG> are prescribed by the said statute or not. If the <ORG> is satisfied that the Act provides no remedy for making a claim for the recov- ery of an illegally collected tax the <ORG> might hesitate to construe a provision giving finality to the orders passed by the tribunals specially created by the Act as creating an absolute bar to the suit and if such a construction was not reasonably possible, the <ORG> would be called upon to examine the constitutionality of the provision excluding the civil <ORG>'s jurisdiction in the light of arts. 19 and 31 of the Constitution. According to the 1st proposition in <NAME>'s (supra) case, if the statute gives finality to the orders passed by the special (1) [1964] 1 S.C.R. 752.

tribunals created by it, <ORG> jurisdiction would be excluded if the statute provides adequate remedies to do what <ORG> are normally empowered to do in a suit. The 6th proposition in that case states that ques- tions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authori- ties are declared to be final or there is an express prohi- bition in the particular Act. Further, that in either case the scheme of the particular Act must be examined because it is a relevant enquiry. These considerations make it neces- sary to examine the relevant provisions of the Act of 1922 and the Rules framed thereunder with a view to seeing whether they provide adequate remedies to the aggrieved party to challenge a wrong or illegal exaction of octroi duty and whether correspondingly, the authorities specially created by the Act have the power to do what civil Courts are generally empowered to do. This inquiry is relevant even though s. 84(3) of the Act does not merely say that orders passed by the special tribunals shall be final but provides that no objection shall be taken to any assessment, levy etc., in any other manner or by any other authority than is provided in the Act.

Section 66(1)(b) of the C.P. and Berar Municipali- ties Act, 1922 empowers <ORG> to impose an octroi on animals or goods brought within the limits of the municipality for sale, consumption or use within those limits. Section 83(1) provides that an appeal against the assessment or levy of, or refusal to refund, any tax under the Act shall lie to the Deputy Commissioner or to such other officer as may be empowered by the Provincial Govern- ment in that behalf Sub-section 1-A of s. 83 gives to the person aggrieved by the decision the appellate authority the right to apply to <ORG> for revision of the decision on the ground (a) that the decision is contrary to law or is repugnant to any principle of assessment of a tax, or (b) that the appellate authority has exercised a jurisdiction not vested in it by law or has failed to exercise the jurisdiction vested in it by law. Section 83(2) empowers the appellate or revision authority to draw up a statement of the case and make a reference to <ORG> for its decision if any. question as to the liability to assessment or as to the principle of assessment arises in the matter on which the authority entertains a reasonable doubt. Then comes s. 84 which by sub-s. (1 ) provides for a limitation of 30 days for appeal and by sub-s. (3) lays down the injunction which is the bone of contentions in the instant case that no objection shall be taken to any valua- tion, assessment or levy nor shall the liability of any person to be taxed or assessed be questioned in any other manner or by any other authority than to is provided in the Act.

Section 71 of the Act empowers <ORG> make rules regulating the assessment of taxes and for preventing evasion of assessment. Section 76 which appears under the heading "Collection of taxes" empowers the government to make rules regulating the collection of taxes including the prevention of evasion of payment and payment of lump sums in composition. Section 85 confers similar empowerment to make rules regulating the refund of taxes.

In exercise of the powers conferred by s. 71, 76 and 85 and in supersession of the earlier rules, <ORG> made rules "for the assessment, collection and refund of the octroi tax" which were gazetted on April 9, 1929 and were amended from time to time. Rule provides that articles subject to octroi duty are liable to duty as soon as they enter the octroi limits. Rule 6(b) which prescribes the mode of calculating octroi duty provides that the cur- rent prices of articles liable to ad valorem duty shall be the cost price to the importer plus the cost of carriage and not the price prevailing in the local market. Rule 8 pre- scribes the details of the procedure for assessing the octroi duty. The note to that rule says that the duty shall be assessed on invoice and not on V.P. covers, <ORG> re- ceipts, letters and hundies. Rules 9(a) (b) (c), 10(b), 12, 13(a) and 13(b) provide for various matters relating to assessment and levy of octroi duty. Rule l4(b) 'provides that any person importing or bringing any dutiable articles within the octroi limits of the municipality "without paying the duty" or without giving declaration to <ORG> shall be liable to pay double the duty and shall in addition be liable to be prosecuted to evasion of duty. Rules 29 onwards deal with "Refund of Octroi". Rule 31 out of that collocation of rules prescribes how and when applications for. refunds may be made.

These provisions show in the first place that the de- fendants indubitably possess the right and the power to assess and recover octroi duty and double duty on goods which are brought within the municipal limits for sale, consumption or use therein. The circumstance that the defendants might have acted in excess of or irregularly in the exercise of that power cannot support the conclusion that the assessment or recovery of the tax is without jurisdiction. Applying the test in Kamla Mills (supra), if the appropriate authority while exercising its Jurisdic- tion and powers under the relevant provisions of the Act, holds erroneously that an assessment already made can be corrected or that an assessee is liable to pay double duty when rule 14(b), in fact, does not justify such an imposi- tion, it cannot be said that the decision of the authority is without jurisdiction. Questions of the correctness of the assessment apart from its constitutionality are, as held in <NAME> (supra), for the decision of the author- ities set up by the Act and a civil suit cannot lie if the orders of those authorities are given finality. There is no constitutional prohibition to the assessment which is im- peached in the instant case as there was in <ORG> (supra), <ORG> (supra), and <NAME> (supra). The tax imposed in those cases being unconstitu- tional, its levy, as said by <NAME> who spoke for the majority in <ORG> (supra), was "without a vestige or semblance of authority or even a shadow of right."

That is in regard to the power of the authority concerned to reassess and to levy double duty. Secondly, both the Act and the Rules contain provisions which we have noticed above, enabling the aggrieved party effectively to challenge an illegal assessment or levy of double duty. By reason of the existence and availability of those special remedies, the ordinary remedy by way of a suit would be excluded on a true interpretation of s. 84(3) of the Act.

The argument that double duty was levied on the plaintiffs though justified by the terms of rule 14(b) goes to the correctness of the levy, not to the jurisdiction of the assessing authority. That rule ;authorizes the imposition of double duty if dutiable articles are imported (a) without paying the duty or (b) without giving declaration to <NAME>. It may be that neither of these two eventualities occurred and therefore there was no justifica- tion for imposing double duty. But the error could be corrected only in the manner provided in the Act and by the authority prescribed therein. The remedy by way of a suit is barred.

Plaintiffs sought support to their contention as regards the maintainability of the suit for refund of double duty and revised duty, from certain observations contained in Firm <NAME> v. Administrator, Municipal Commit- tee, Ludhiana(1) to the effect that "a suit in a civil Court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by neces- sary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions." In the first place, the assessment in the instant case was made by the authority duly empowered to do so and secondly the authority was acting under the Act while revising the assessment and imposing double duty. It had the power to assess and levy double duty. If it exceeded that power it acted wrongly, .not without jurisdiction. In Firm <NAME> (supra), <ORG> being entitled to impose a certain rate of tax on common salt and higher rate in respect of salt of other kinds, imposed tax at the higher rate on "sambhar salt" which was a variety of common salt. Section 86 of the Punjab Municipal Act, 1911, provided that the liability of any person to be taxed cannot be questioned in any manner or by any authority other than that provided in the Act. That provision is identical with s. 84(3) of the C.P. Municipalities Act, 1922, with which we are concerned in the instant case. Section 86(2) of the Punjab Act provided that no refund of any tax shall be claimed by any person otherwise than in accordance with the provisions of the Act and the Rules thereunder. It was held by this Court that the liability to pay terminal tax was created by the Act and since a remedy was given to the party aggrieved in the enforcement of that liability, the suit for refund was not maintainable by reason of s. 86 . The observations on which plaintiffs rely 'cannot, in the context, be taken to mean that the Act protects correct assessments only and that every incorrect or wrong order of assessment can be challenged by a suit though the statute gives it finality and provides full and effective remedies to challenge it. Except in matters of constitutionality and the like, a self-contained Code must have priority over the common means of vindicating rights. We would like to add that if the observations on which plaintiffs rely are to be understood literally, they are contrary to the decision in <ORG> (supra) ,case where, speaking for a seven-Judge Bench, <NAME> ob- served that if the appropriate authority while exercising its jurisdiction and powers under the relevant provisions of the Act comes to an erroneous conclusion, it cannot be said that the decision is without jurisdiction (p. 78). (1) [19641 2 S.C.R. 273, 284.

Plaintiff's reliance on the 1st proposition in <NAME> s (supra) case is equally misconceived. The first two propo- sitions formulated in that case contain a dichotomy. The l st proposition refers to cases where the statute merely gives finality to orders .of special tribunals. In such cases, according to that proposition, the civil <ORG>'s jurisdiction would not be excluded if "the provisions of the particular Act arc not complied with". The instant case does not fall under the 1st. proposition because s. 84(3) of the Act does not merely give finality to the orders passed by the, special tribunals. It provides, expressly, that such orders shall not be questioned in any other manner or by any other authority than is provided in the Act. The 2nd proposition deals in its first paragraph with cases where there is an express bar to the civil <ORG>s' jurisdic- tion. The second paragraph of that proposition deals with cases where there is no express exclusion. The instant case falls under either one or the other paragraph of this proposition, which rendered it necessary to examine whether the Act creates special rights and liabilities, provides for their determination by laying down that such rights and liabilities shall be determined by the special tribunals constituted under it and whether remedies normally associat- ed with actions in civil <ORG>s are prescribed by the Act. Upon that examination we concluded that the suit is barred from the cognizance of the Civil <ORG>.

Not only that the Act of 1922 provides an effective remedy to an aggrieved party to challenge the assessment of octroi duty and to claim refund of duty illegally paid or recovered, but the plaintiffs in fact availed themselves of these remedies. In 1946-47 when <ORG> reopened and revised the past assessments by charging octroi duty on an amount which was only 61/4% less than the retail price of the goods and when it levied double duty by way of penalty plaintiffs preferred an appeal against the decision of <ORG> to the Sub-Divisional Officer, Jabalpur, who by an order dated' July 14, 1946 modified the decision of the <ORG> by asking them to charge octroi duty on an amount which was less by 121/2%instead of 61/4% than the retail price of the goods. Plaintiffs succeeded to an extent though the Sub-Divisional Officer upheld the assessment of double duty. Having exhausted their remedies under the Act and having been benefited by the appellate decision, though partly, plaintiffs turned to the civil Court to claim the refund. That is impermissible in view of the provision contained in s. 84(3) of the Act. In the result, Civil Appeal No. 1923 of 1972 filed by the plaintiffs fails and is dismissed. Civil Appeal No. 1924 of 1972 filed by the defendants succeeds and is allowed with the result that the plaintiffs' suit will stand dis- missed. Considering that the defendants revised the assess- ment after a lapse of time parties will bear their costs throughout.

P.B.R. C.A. 1923/72 dismissed. C.A. 1924/72 allowed. ?195


CASE NO.: Appeal (crl.) 155 of 2002 PETITIONER: SEKAR @ RAJA SEKHARAN RESPONDENT: STATE REP. BY INSPECTOR OF POLICE, <NAME> DATE OF JUDGMENT: 03/10/2002 BENCH: ARIJIT PASAYAT & S.B. SINHA JUDGMENT:

JUDGMENT 2002 Supp(3) SCR 113 The Judgment of the Court was delivered by <NAME>, J. The accused is in appeal before this Court against judgment of <ORG> upholding his conviction for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short " IPC ") and consequential sentence of imprisonment for life.

The factual scenario as described by the prosecution need to be noted in brief. On 19.8.1989, there was exchange of hot words over the release of a sheep. <NAME> (hereinafter referred to as "the deceased") impounded the sheep which, according to him, was destroying his crops. Accused and others went to the place where the sheep was tied and they untied it from the rope. This led to exchange of words between the deceased and the accused. When the deceased fell down after receiving injuries on his hand and left shoulder, the accused again inflicted another blow on his neck. The occurrence was witnessed by PW-1, PW-2 and PW-3. Information was lodged at the police Station and on completion of investigation, charge-sheet was placed and the accused faced trial. The accused took the plea of false implication and alternatively pleaded that the assaults were made in exercise of right of private defence. The trial court placing reliance on evidence of PW-1, PW-2 and PW-3 came to hold that the accused was responsible for the death of the deceased. Plea of the accused that the assaults were made in exercise of the right of private defence was not accepted, more particularly in view of the fact that even after the deceased had fallen down, the accused inflicted a further blow on the neck.

In appeal, <ORG> did not find any merit in the submissions made to the effect that this was a case which was clearly covered by the accused's exercise of right of private defence. Having rejected this stand of the accused, <ORG> analysed the evidence to conclude that the conviction was justified.

Learned counsel for the appellant submitted that the evidence of witnesses examined to substantiate the stand of right of private defence has been lightly brushed aside by the trial court and <ORG>. The accepted prosecution version being that the assaults were made in course of a sudden quarrel, Section 302  has no application. Learned counsel for the State of Tamil Nadu, on the other hand, submitted that after analysis of the factual position, the trial court as well as <ORG> have come to conclude that the accused was responsible for the death of the deceased and this is not a case where the right of private defence can be pressed into service by the accused.

In view of the categorical evidence of PW-1, PW-2 and PW-3 implicating the accused, we find no reason to accept the plea of the accused about his innocence. In fact, the occurrence has been accepted but the plea was one of exercise of right of private defence. The plea relating to exercise of right of private defence has been rightly rejected by the courts below. It is in evidence that accused dealt a further blow on the neck, after the deceased had fallen down after receiving blows on other parts of the body.

Section 96 , IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The Section does not define the expression 'right of private defence'. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person acted in the exercise of the right of private defence, is a question of fact to be determined on the facts and circumstance of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the <ORG> must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the <ORG> to consider such a plea. In a given case, the <ORG> can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872 (in short the ' Evidence Act ') the burden of proof is on the accused, who takes the plea of self-defence, and, in the absence of proof, it is not possible for the <ORG> to presume the truth of the plea of self-defence. The <ORG> shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the <ORG> that the harm caused by the accused was necessary for either warding off the attack or for forestalling any further reasonable apprehension, from the attacker. The burden of establishing the plea of self-defence is on the accused and the burden stand discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. <CITATION> , AIR (1968) SC 702; <CITATION> , AIR (1975) SC 1478; <CITATION> , AIR (1977) SC 2226 and <CITATION> , AIR (1979) SC 577. Sections 100 and 101 define the extent of the right of private defence of body. If a person has a right of private defence of body under Section 97 , that right extends under Section 100 to causing death if there is reasonable apprehension that death or grievous hurt would be the consequence of the assault. The oft- quoted observation of the Supreme <ORG> in <CITATION> ., AIR (1979) SC 391; runs as follows:

"It is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the nilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of the prosecution witnesses or by adducing defence evidence."

The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea.

The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilises the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation, is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. ( <CITATION> , AIR (1976) SC 2263). A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property. Section 99 lays down the limits of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99 . To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had right of private defence which extended to causing of death. Sections 100 and 101 , IPC define the limit and extent of right of private defence.

Sections 102 and 105 , IPC deal with commencement and continuance of the right of private defence of body and property respectively. The right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat, or commit the offence, although the offence may not have been committed, but not until that there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. <CITATION> , AIR (1963) SC 612, it was observed that as soon as the cause for reasonable apprehension disappears and the threat has either been destroyed or has been put to route, there can be no occasion to exercise the right of private defence.

In order to find whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered.

We notice that there was an altercation between the accused and the deceased. There was no pre-meditation and the assaults were given by the accused during the course of the sudden quarrel. This, according to us, brings the case within the ambit of Exception IV to Section 300 . Even otherwise, this appears to be a case of accused exceeding the right of private defence. The appropriate conviction would, therefore, be under Section 304 Part I, IPC and custodial sentence of 10 years would meet the ends of justice.

While awarding the sentence, one factor which has weighed with us is that two rustic villagers fought over a sheep which led to the death of one. The social status of the accused and the deceased, which as the materials on record show is that of the lowest layer. They belonged to the economically distressed class; were illiterate daily wage earners. Their financial condition can be well gauzed from the fact that they fought over a sheep and the minimal damage done by it to the crops. There was no previous enimity. A spur of the moment loss of faculties led to the unfortunate occurrence. This is certainly a relevant factor to be taken note of while awarding the sentence. We, therefore, reduce the sentence to 10 years and if the accused has undergone the period of 10 years and is not required to be in custody in any other case, he shall be released forthwith.

The appeal is allowed to the extent indicated.


ORDER <NAME>, C.J.

1. In this petition the petitioner swastik products quashing of the impugned notices at Annexures "B", "D" and 'U' issued impugned order of the respondents at Annexures. There is a further prayer for a writ of mandamus directing the respondents to forbear from enforcing and to desist from the enforcing the demand made in the aforesaid notice.

2. The facts giving rise to this petition briefly are these. The petitioner is a firm doing business of printing on paper. It purchases paper manufactured by manufacturers and colours or prints on one side of the paper. It is this colouring or printing on one side of the paper purchased by it from manufactures according to the respondents, that has entitled them to the demand payment of excise duty in accordance with the Tariff Item 17(4) of the First Schedule to the <ORG> Manual. Before the present action was taken against the petitioner, the Collector of <ORG> had held that the paper processed by is not liable o payment of any excise duty as it does not fall within Tariff Item No. 17(4) but the subsequently that view was not upheld by the excise authorities. The petitioner had once before moved this court for the same relief as prayed for new nd this court directed the excise authorities to afford the petitioner an opportunity of being heard and pursuant to that the Assistant Collector in the first instance heard the petitioner and held that the colouring or printing on one side amounts to 'manufacture' of paper is defined in section 2(f) of the <ORG>s and Salt Act , 1944 and the in view held that Tariff Item 17(4) is attracted. The decision of the Assistant Collector which was carried in appeal by the petitioner was upheld by the Collector of <ORG> and the Revision Petition filed against the Collector's decision was also dismissed by <ORG>, It is after the decision of <ORG> that the impugned notices and the order were served upon the petitioner calling upon it to pay duty on the goods, namely, printed, paper as provided in Tariff Item 17(4).

3. Mr. <NAME>, learned counsel appearing for the petitioner invited our attention to Tariff Item 17 and also the definition of 'manufacture' to the contended that by no stretch of reasoning can, paper which is coloured by the petitioner to one side or printed on one side be said to be a process in the 'manufacture' of paper. 'Manufacture' as defined in section 2(f) includes any process incidental incidental or ancillary to the completion of a manufactured product; and

(i) in relation to tobacco, includes the preparation of cigarettes, cigars, cheroots, biris, cigarette or pipe or hookah tobacco, chewing tobacco or snuff; and

(ii) in relation to salt, includes collection, removal, preparation, steeping evaporation, boiling or any one or more of these processes the separation or purification of salt obtained in the manufacture of saltpeter, the separation of salt from earth or other substance so as to produce elementary salt, and the excavation or removal of natural saline deposits or efflorescence.

(iii) in relation to patent or proprietary medicines as defined Item No. 14E of the First Schedule and the relation to cosmetics and toilet preparation as defined in Item No. 14F of that the Schedule, includes the conversion of powder into tablets or capsules, the labelling or re-being of containers intended for consumers and re-packing from bulk packs to retails packs or the adoption of any other treatment to render the product marketable to the consumer.

(iv) in relation to goods comprised in Item No. 18A of the First Schedule includes sizing beaming warping, wrapping, winding or reeling or any one or more of these processes or the conversion of any form of the said goods into another form of such goods;

and the word 'manufacturer' shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account.

Tariff Item No. 17 of the extent relevant read-

`17. paper, all sorts (including paste board, millboard, starboard and cardboard) in or in relation to the manufacture of which any process is ordinarily carried on with the aid of the power :-

(1) Cigarette issue Rs. three per kg. (2) Blotting, toilet tissue other than Rs. one and twenty cigarette tissue, teleprinter paise per kg typewriting manifold bank bond art paper chrome paper tubsized paper, cheque paper stamp papers cartridge paper, waxed paper polyethylen & coated par, parchment and coated paper (including art board chrome board and for the playing cards). (3) Printing and writing paper, packing Sixty paise per kg. and wrapping paper and straw broad and pulpboard including grey board, corrugated board, duplex and triplex board, other sorts. (4) All other kinds of paper and paper Rupees one and twenty board not otherwise specified. paise per kg.

4. What Mr. <NAME> appearing for the respondents contends is that the colouring process of the paper purchased by the petitioner would come within the sweep of "all other kinds of paper and paper board, not otherwise sepcified'. The words 'all other kinds of paper' occurring in Tariff item 17(3) refers of 'all other kinds of paper manufactured. Colouring a paper nor can that process be said to be one incidental or ancillary to the manufacture of colouring was in the process of the 'manufacture' of the would come within the expression paper all sorts, No manufacturing process is involved by printing on the white paper or by colouring manufactured product namely, the paper. We are, therefore, unable to agree with Mr. <NAME> that 'all other kinds of paper' would take in paper which has already been manufactured and on which either printing is done or colouring is done. We, therefore hold that the respondents erred in invoking sub- item (4) of Tariff Item 17 in demanding the payment of excise duty. It is brought to our notice by the learned counsel for the petitioner that the goods in question had already suffered excise duty. duty payable on the goods sold tot he petitioner. This statement made by the learned counsel for the respondents. There is no separate item for payment of excise duty on flint paper. Therefore the petitioner is not liable for payment of excise duty on the flint paper.

5. We therefore quash and impugned notices and the impugned orders and allow this writ petitioner and make the Rule absolute with no order as to costs.