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What is the summary of this judgment?
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Shri N. C. Chatterjee appearing on behalf of the appellant has, however, stated that the appellant would forego the recovery of that amount and would also keep the respondents on the reserve list to be employed in the mills as and when there were vacancies in their permanent cadre. We hope that the respondents will take this offer in the true spirit with, which it has been made on behalf of the appellant and behave better in the future. Shri N. C. Chatterjee has also left the question of costs of both these appeals to us and we do order that, in all the circumstances of the case, it would be proper that each party do bear and pay its own costs of both these appeals. Appeals allowed.
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Seventy six workers of the appellant company resorted to a tools down strike in sympathy with a dismissed co worker. Repeated attempts to persuade them to resume work having failed the General Manager suspended them until further orders. After midday recess the Management sought to prevent the workers from entering the mills but they violently entered the mills and the Police had to be called in by the company to keep the peace. Charges of misconduct and insubordination were thereafter framed against the workers and they were called upon to show cause in an open enquiry to be held by the General Manager why disciplinary action should not be taken against them and the order of suspension was extended pending the enquiry. The workers took up an attitude of total non cooperation and the atmosphere was tense with the result that the enquiry could not be held within 4 days. The Management decided to dismiss the workers as a result of the enquiry but as an appeal was then pending before the Labour Appellate Tribunal, the company applied to it under section 22 of the Industrial Disputes (Appellate Tribunal) Act of 1950 for permission to do so and extended the period of suspension pending receipt of such permission. The workmen in their turn filed an application under a. 23 of the Act to the Appellate Tribunal for requisite action to be taken against the company for having contravened section 22(b) of the Act by resorting to an illegal lock out and thereby punishing them without its prior permission. The Appellate Tribunal held that the company had not held the enquiry within the time specified by el. L 12 of the Standing Orders and on that ground dismissed its application. It allowed the application of the workers holding that the wholesale suspension of the workers and preventing them from continuing work. after the mid day recess amounted to a lock out 917 and punishment by the company and contravened section 22(b) of the Act and directed their reinstatement. The company appealed. It was contended on behalf of the company that there had been neither a breach of el. L 12 of the Standing Orders nor a contravention of section 22(b) of the Act. Hold, that the contentions were correct and the appeals must succeed. The conduct of the company did not come within the definition of a lock out and even if there was any lock out it was in consequence of the illegal strike resorted to by the workmen and as such could not be deemed to be illegal by virtue of section 24(3) of the Industrial Disputes. Act, 1947. Moreover, even assuming that the company declared an illegal lock out it was not necessary for it to obtain the permission of the Appellate Tribunal under section 22 of the Act before it could do so. A lock out was neither an alteration of the conditions of service within the meaning of el. (a) nor a discharge or punishment by dismissal or otherwise within the meaning of el. (b) of section 33 of the Industrial Disputes Act, 1947 or under section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950 and no permission was, therefore, required for its declaration. If the lock out was illegal the workmen had their remedy under section 26 of the Industrial Disputes Act and in any event they had the right to have the dispute referred for adjudication. Jute Workers Federation, Calcutta vs Clive Jute Mills ([1951] and Colliery Mazdoor Congress, Asansol vs New Beerbhoom Coal Co. Ltd. ([1952] L.A.C. 219), approved. The Company having been declared a public utility concern, the workers had no right to go on strike without giving a notice in terms of section 22(1) of the and the tools down strike resorted to by them was illegal and the company was within its rights in suspending them. Buckingham and Carnatic Co. Ltd. vs Workers of the Buckingham and Carnatic Co. Ltd., ([1953] S.C.R. 219), referred to. Mere failure to hold an enquiry within the period of four days prescribed by el. L 12 of the Standing Orders could not determine the matter before the Appellate Tribunal and where, as in the instant case, the delay was due to the conduct of the workers it was sufficiently explained. Where full and free opportunity was given to the workers to be present and defend themselves in a duly notified enquiry and they failed to do so, the Management was quite within its right to come to its own conclusion as to their guilt and the punishment to be meted out to them and it was not open to the workmen thereafter to urge that such enquiry was not fair or impartial or violated the principles of natural justice. 918 There could be no punishment so long as there was no offence and any action of the employer to the detriment of the workers ' interest would not amount to punishment. The law did not contemplate anything like a contingent punishment of a worker and, consequently, where there was an interim order of suspension pending an enquiry or the grant of permission by the Appellate Tribunal, the question of pay for the period of such suspension depending on whether or not the permission would be granted, such suspension would not amount to punishment even where it was of an indefinite duration so as to attract the operation of section 22 of the In dustrial Disputes (Appellate Tribunal) Act, 1950. Champdany Jute Mills and Certain Workmen, ([1952) 1 L.L.J. 554), Joint Steamer Companies and Their Workmen, ([1954] II L.L.J. 221), Assam Oil Co. Ltd. vs Appalswami, ([1954], Standard Vacuum Oil Co. vs Gunaseelan, M. G. ([1954] II L.L.J. 656), relied on. Under that section the only thing that the Appellate Tribunal had to consider was whether a prima facie case had been made out by the employer for lifting the ban imposed by the section and if, on the materials before it, it was satisfied that there bad been a fair enquiry in the circumstances of the case and the Management had bona fide come to the conclusion that the worker was guilty of misconduct with which he had been charged and it would be detrimental to discipline and dangerous in the interests of the company to continue him in its employ, a prima facie case was made out and the Tribunal would be bound to permit the employer to punish the workman. It would be no part of its duty to judge whether the punishment was harsh or excessive, except so far it might bear on the bona fides of the Management, and could only grant the permission as sought for or refuse it and the question of the propriety of the punishment could be decided only by the appropriate Tribunal appointed by the Government for adjudicating the industrial dispute which would ensue upon the action of the management. Atherton West & Co. Ltd. vs Suti Mills Mazdoor Union and Others, ([1953] S.C.R. 780), The Automobile Products of India Ltd. vs Bukmaji Bala & Others, ([1955] 1 S.C.R. 1241) Champdany Jute Mills and Shri Alijan, ([1952] II L.L.J. 629), R.B.S. Lachmandas Mohan Lal & Sons Ltd. and Chini Hill Karmachari Union, ([1952] II L.L.J. 787) and Assam Oil Companies ' Case, ([1954] L.A.C. 78), referred to.
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What is the summary of this judgment?
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Civil Appeals Nos. 133 188 of 1975. [Appeals by Special Leave from the Judgments and Orders dated the (1) 29 4 1970, (2) 28 7 1970, (3) 12 3 1970, (4) 28 7 1970, (5) 7 9 1970, (6) 7 4 1970 & (7) 12 3 1970 of the Madras High Court at Madras in (1) W.P. Nos. 2929, 3253 and 68, 123 and 260 of 1970, (2) W.P. Nos.
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For the purpose of protecting the smaller manufacturers from the cometition of larger manufacturers, the Government of India, by a notification dated 21 July 1967, amended by notification dated 4 September, 1967, declared a concessional rate of duty to those manufacturers who had filed a declaration before 4 September 1967 that their estimated annual clearance would be less than 75 million match sticks. This Court in Union of India vs Parameswaran Match Works etc. ; setting aside the judgment of the High Court holding that classification was invalid, held the classification founded on a particular date to be reasonable; and the concessional rate would be availed of even by those manufacturers who came to the field after 4 September, 1967 if they satisfied the condition in clause (d) of the notification regarding quantity of matches and are recommended by the Khadi and Village Industries Commission for exemption. The respondent filed declarations on 22 December, 1967 that they would not produce more than 75 million match sticks during the year 1969 70 and claimed to be entitled to the concessional rate of excise duty. In appeal to this Court the respondents sought to support the judgment of the High Court on the grounds (i) that they were entitled to the exemption on the basis of clause (d) of the notification; and (ii) that the Khadi and Village Industries Commission was not competent to make any recommendation. Allowing the appeal, ^ HELD: (1) The appeals are covered by the decision of this Court in Parameswaran Match Works case and no case is made out by the respondents on the basis of exemption under cl. (d) of the notification. There is no allegation in the petition that the respondents came into the field after 4 September 1967 or that they started manufacturing the matches after 4 September, 1967 or that they were recommended by the Khadi and Villages Industries Commission mission. [871 D & B] (2) Under section 15(h) of the the Commission may take steps in ensuring the genuineness of, and for granting certificates to producers of, or dealers in, Khadi or the products of any village industry. Therefore, the Commission is competent to recommend for exemptions under cl. (d) of the Notification.
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What is the summary of this judgment?
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1606 and 1607/70, (3) W.P. Nos. 1998, 2484, 2567, 2568, 2569, 2663 65, 3046, 3125, 3126, 3182, 3363 65, 3410, 3508, 3555 60, 3630, 3631, 3667 3668, 3810 3812 and 869 3650 of 1969, (4) W.P. Nos. 2647, 2648/69 and 1121, 1451, 1452 and 1495 and 1496 of 1970, (5) W.P. Nos.
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For the purpose of protecting the smaller manufacturers from the cometition of larger manufacturers, the Government of India, by a notification dated 21 July 1967, amended by notification dated 4 September, 1967, declared a concessional rate of duty to those manufacturers who had filed a declaration before 4 September 1967 that their estimated annual clearance would be less than 75 million match sticks. This Court in Union of India vs Parameswaran Match Works etc. ; setting aside the judgment of the High Court holding that classification was invalid, held the classification founded on a particular date to be reasonable; and the concessional rate would be availed of even by those manufacturers who came to the field after 4 September, 1967 if they satisfied the condition in clause (d) of the notification regarding quantity of matches and are recommended by the Khadi and Village Industries Commission for exemption. The respondent filed declarations on 22 December, 1967 that they would not produce more than 75 million match sticks during the year 1969 70 and claimed to be entitled to the concessional rate of excise duty. In appeal to this Court the respondents sought to support the judgment of the High Court on the grounds (i) that they were entitled to the exemption on the basis of clause (d) of the notification; and (ii) that the Khadi and Village Industries Commission was not competent to make any recommendation. Allowing the appeal, ^ HELD: (1) The appeals are covered by the decision of this Court in Parameswaran Match Works case and no case is made out by the respondents on the basis of exemption under cl. (d) of the notification. There is no allegation in the petition that the respondents came into the field after 4 September 1967 or that they started manufacturing the matches after 4 September, 1967 or that they were recommended by the Khadi and Villages Industries Commission mission. [871 D & B] (2) Under section 15(h) of the the Commission may take steps in ensuring the genuineness of, and for granting certificates to producers of, or dealers in, Khadi or the products of any village industry. Therefore, the Commission is competent to recommend for exemptions under cl. (d) of the Notification.
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What is the summary of this judgment?
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1912, 1913, 1919, 2123, 2318, 2516 and 2610 of 1970, (6) W.P. Nos. 2088, 2317 and 2515/70 and (7) W.P. No. 3666 of 1969 respectively. Niren De, Attorney General of India and R. N. Sachthey, for the Appellants.
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For the purpose of protecting the smaller manufacturers from the cometition of larger manufacturers, the Government of India, by a notification dated 21 July 1967, amended by notification dated 4 September, 1967, declared a concessional rate of duty to those manufacturers who had filed a declaration before 4 September 1967 that their estimated annual clearance would be less than 75 million match sticks. This Court in Union of India vs Parameswaran Match Works etc. ; setting aside the judgment of the High Court holding that classification was invalid, held the classification founded on a particular date to be reasonable; and the concessional rate would be availed of even by those manufacturers who came to the field after 4 September, 1967 if they satisfied the condition in clause (d) of the notification regarding quantity of matches and are recommended by the Khadi and Village Industries Commission for exemption. The respondent filed declarations on 22 December, 1967 that they would not produce more than 75 million match sticks during the year 1969 70 and claimed to be entitled to the concessional rate of excise duty. In appeal to this Court the respondents sought to support the judgment of the High Court on the grounds (i) that they were entitled to the exemption on the basis of clause (d) of the notification; and (ii) that the Khadi and Village Industries Commission was not competent to make any recommendation. Allowing the appeal, ^ HELD: (1) The appeals are covered by the decision of this Court in Parameswaran Match Works case and no case is made out by the respondents on the basis of exemption under cl. (d) of the notification. There is no allegation in the petition that the respondents came into the field after 4 September 1967 or that they started manufacturing the matches after 4 September, 1967 or that they were recommended by the Khadi and Villages Industries Commission mission. [871 D & B] (2) Under section 15(h) of the the Commission may take steps in ensuring the genuineness of, and for granting certificates to producers of, or dealers in, Khadi or the products of any village industry. Therefore, the Commission is competent to recommend for exemptions under cl. (d) of the Notification.
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What is the summary of this judgment?
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M. R. M. Abdul Karim and Shaukat Hussain for the Respondents (In Cas. Nos. 137, 140, 149, 152 155, 164, 169, 178, 179, 181, 182, 183 and 187/75.) Mrs. section Gopalakrishnan for the Respondents (In CA No. 177 of 1975). The Judgment of the Court was delivered by RAY, C.J.
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For the purpose of protecting the smaller manufacturers from the cometition of larger manufacturers, the Government of India, by a notification dated 21 July 1967, amended by notification dated 4 September, 1967, declared a concessional rate of duty to those manufacturers who had filed a declaration before 4 September 1967 that their estimated annual clearance would be less than 75 million match sticks. This Court in Union of India vs Parameswaran Match Works etc. ; setting aside the judgment of the High Court holding that classification was invalid, held the classification founded on a particular date to be reasonable; and the concessional rate would be availed of even by those manufacturers who came to the field after 4 September, 1967 if they satisfied the condition in clause (d) of the notification regarding quantity of matches and are recommended by the Khadi and Village Industries Commission for exemption. The respondent filed declarations on 22 December, 1967 that they would not produce more than 75 million match sticks during the year 1969 70 and claimed to be entitled to the concessional rate of excise duty. In appeal to this Court the respondents sought to support the judgment of the High Court on the grounds (i) that they were entitled to the exemption on the basis of clause (d) of the notification; and (ii) that the Khadi and Village Industries Commission was not competent to make any recommendation. Allowing the appeal, ^ HELD: (1) The appeals are covered by the decision of this Court in Parameswaran Match Works case and no case is made out by the respondents on the basis of exemption under cl. (d) of the notification. There is no allegation in the petition that the respondents came into the field after 4 September 1967 or that they started manufacturing the matches after 4 September, 1967 or that they were recommended by the Khadi and Villages Industries Commission mission. [871 D & B] (2) Under section 15(h) of the the Commission may take steps in ensuring the genuineness of, and for granting certificates to producers of, or dealers in, Khadi or the products of any village industry. Therefore, the Commission is competent to recommend for exemptions under cl. (d) of the Notification.
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What is the summary of this judgment?
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These appeals arise out of the judgment dated 11th December, 1968 in writ petition No. 3838 of 1968 in the High Court at Madras. In the present appeals the writ petitions in the High Court were allowed following the judgment of the High Court in the aforesaid writ petition No. 3838 of 1968. In Civil Appeals No. 262 273 of 1971 arising out of the common judgment dated 11 December, 1968 of the High Court at Madras in writ petition No.
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For the purpose of protecting the smaller manufacturers from the cometition of larger manufacturers, the Government of India, by a notification dated 21 July 1967, amended by notification dated 4 September, 1967, declared a concessional rate of duty to those manufacturers who had filed a declaration before 4 September 1967 that their estimated annual clearance would be less than 75 million match sticks. This Court in Union of India vs Parameswaran Match Works etc. ; setting aside the judgment of the High Court holding that classification was invalid, held the classification founded on a particular date to be reasonable; and the concessional rate would be availed of even by those manufacturers who came to the field after 4 September, 1967 if they satisfied the condition in clause (d) of the notification regarding quantity of matches and are recommended by the Khadi and Village Industries Commission for exemption. The respondent filed declarations on 22 December, 1967 that they would not produce more than 75 million match sticks during the year 1969 70 and claimed to be entitled to the concessional rate of excise duty. In appeal to this Court the respondents sought to support the judgment of the High Court on the grounds (i) that they were entitled to the exemption on the basis of clause (d) of the notification; and (ii) that the Khadi and Village Industries Commission was not competent to make any recommendation. Allowing the appeal, ^ HELD: (1) The appeals are covered by the decision of this Court in Parameswaran Match Works case and no case is made out by the respondents on the basis of exemption under cl. (d) of the notification. There is no allegation in the petition that the respondents came into the field after 4 September 1967 or that they started manufacturing the matches after 4 September, 1967 or that they were recommended by the Khadi and Villages Industries Commission mission. [871 D & B] (2) Under section 15(h) of the the Commission may take steps in ensuring the genuineness of, and for granting certificates to producers of, or dealers in, Khadi or the products of any village industry. Therefore, the Commission is competent to recommend for exemptions under cl. (d) of the Notification.
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What is the summary of this judgment?
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3838 of 1968 this Court in the decision in Union of India & Anr. vs M/s Parameswaran Match Works etc. set aside the orders of the High Court and dismissed the writ petitions. The present appeals were not heard at that time because service was not complete. This Court by order dated 14 July, 1975 directed that these appeals be listed for hearing on 21 November, 1975. The Union made an application for consolidation of appeals, reduction of security and early hearing of the appeals.
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For the purpose of protecting the smaller manufacturers from the cometition of larger manufacturers, the Government of India, by a notification dated 21 July 1967, amended by notification dated 4 September, 1967, declared a concessional rate of duty to those manufacturers who had filed a declaration before 4 September 1967 that their estimated annual clearance would be less than 75 million match sticks. This Court in Union of India vs Parameswaran Match Works etc. ; setting aside the judgment of the High Court holding that classification was invalid, held the classification founded on a particular date to be reasonable; and the concessional rate would be availed of even by those manufacturers who came to the field after 4 September, 1967 if they satisfied the condition in clause (d) of the notification regarding quantity of matches and are recommended by the Khadi and Village Industries Commission for exemption. The respondent filed declarations on 22 December, 1967 that they would not produce more than 75 million match sticks during the year 1969 70 and claimed to be entitled to the concessional rate of excise duty. In appeal to this Court the respondents sought to support the judgment of the High Court on the grounds (i) that they were entitled to the exemption on the basis of clause (d) of the notification; and (ii) that the Khadi and Village Industries Commission was not competent to make any recommendation. Allowing the appeal, ^ HELD: (1) The appeals are covered by the decision of this Court in Parameswaran Match Works case and no case is made out by the respondents on the basis of exemption under cl. (d) of the notification. There is no allegation in the petition that the respondents came into the field after 4 September 1967 or that they started manufacturing the matches after 4 September, 1967 or that they were recommended by the Khadi and Villages Industries Commission mission. [871 D & B] (2) Under section 15(h) of the the Commission may take steps in ensuring the genuineness of, and for granting certificates to producers of, or dealers in, Khadi or the products of any village industry. Therefore, the Commission is competent to recommend for exemptions under cl. (d) of the Notification.
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What is the summary of this judgment?
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The respondents were served in that application. Pursuant to that application this Court ordered on 14 July, 1975 the hearing of the appeals on 21 November, 1975. The respondents have entered appearance in all these appeals. In these appeals the respondents who were petitioners in the High Court asked for a writ of prohibition restraining the appellants from collecting any duty in excess of Rs. 3.75 per gross from the petitioners in pursuance of notification dated 21 July, 1967 as amended by notification dated 4 September, 1967. The case of the respondents in the High Court was that they filed declaration on 22 December, 1969 for 1969 70 that they would not produce more than 75 million match sticks during the financial year.
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For the purpose of protecting the smaller manufacturers from the cometition of larger manufacturers, the Government of India, by a notification dated 21 July 1967, amended by notification dated 4 September, 1967, declared a concessional rate of duty to those manufacturers who had filed a declaration before 4 September 1967 that their estimated annual clearance would be less than 75 million match sticks. This Court in Union of India vs Parameswaran Match Works etc. ; setting aside the judgment of the High Court holding that classification was invalid, held the classification founded on a particular date to be reasonable; and the concessional rate would be availed of even by those manufacturers who came to the field after 4 September, 1967 if they satisfied the condition in clause (d) of the notification regarding quantity of matches and are recommended by the Khadi and Village Industries Commission for exemption. The respondent filed declarations on 22 December, 1967 that they would not produce more than 75 million match sticks during the year 1969 70 and claimed to be entitled to the concessional rate of excise duty. In appeal to this Court the respondents sought to support the judgment of the High Court on the grounds (i) that they were entitled to the exemption on the basis of clause (d) of the notification; and (ii) that the Khadi and Village Industries Commission was not competent to make any recommendation. Allowing the appeal, ^ HELD: (1) The appeals are covered by the decision of this Court in Parameswaran Match Works case and no case is made out by the respondents on the basis of exemption under cl. (d) of the notification. There is no allegation in the petition that the respondents came into the field after 4 September 1967 or that they started manufacturing the matches after 4 September, 1967 or that they were recommended by the Khadi and Villages Industries Commission mission. [871 D & B] (2) Under section 15(h) of the the Commission may take steps in ensuring the genuineness of, and for granting certificates to producers of, or dealers in, Khadi or the products of any village industry. Therefore, the Commission is competent to recommend for exemptions under cl. (d) of the Notification.
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What is the summary of this judgment?
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The respondents claimed to be entitled to the concessional 870 rate of excise duty at Rs. 3.75 per gross pursuant to the notification dated 21 July, 1967. The further case of the respondents in the High Court was that the notification dated 4 September, 1967 was issued stating that the concession of Rs. 3.75 per gross would be available to such "D" Class manufacturers who had filed the declaration before 4 September, 1967. The respondents challenged the fixing of the date 4 September, 1967 as an arbitrary time limit making unreasonable discrimination between the same category of manufacture simply on the basis of the application being before or after 4 September, 1967. The respondents craved reference to the judgment of the High Court in writ petition No.
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For the purpose of protecting the smaller manufacturers from the cometition of larger manufacturers, the Government of India, by a notification dated 21 July 1967, amended by notification dated 4 September, 1967, declared a concessional rate of duty to those manufacturers who had filed a declaration before 4 September 1967 that their estimated annual clearance would be less than 75 million match sticks. This Court in Union of India vs Parameswaran Match Works etc. ; setting aside the judgment of the High Court holding that classification was invalid, held the classification founded on a particular date to be reasonable; and the concessional rate would be availed of even by those manufacturers who came to the field after 4 September, 1967 if they satisfied the condition in clause (d) of the notification regarding quantity of matches and are recommended by the Khadi and Village Industries Commission for exemption. The respondent filed declarations on 22 December, 1967 that they would not produce more than 75 million match sticks during the year 1969 70 and claimed to be entitled to the concessional rate of excise duty. In appeal to this Court the respondents sought to support the judgment of the High Court on the grounds (i) that they were entitled to the exemption on the basis of clause (d) of the notification; and (ii) that the Khadi and Village Industries Commission was not competent to make any recommendation. Allowing the appeal, ^ HELD: (1) The appeals are covered by the decision of this Court in Parameswaran Match Works case and no case is made out by the respondents on the basis of exemption under cl. (d) of the notification. There is no allegation in the petition that the respondents came into the field after 4 September 1967 or that they started manufacturing the matches after 4 September, 1967 or that they were recommended by the Khadi and Villages Industries Commission mission. [871 D & B] (2) Under section 15(h) of the the Commission may take steps in ensuring the genuineness of, and for granting certificates to producers of, or dealers in, Khadi or the products of any village industry. Therefore, the Commission is competent to recommend for exemptions under cl. (d) of the Notification.
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What is the summary of this judgment?
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3838 of 1968 dated 11 December, 1968 and prayed for orders in terms of that judgment. The High Court accepted the petition of the respondents following the judgment in writ petition No. 3838 of 1968 dated 11 December, 1968. The appellants challenged the decision of the High Court and relied on the decision of this Court in M/s Parameswaran Match Works case (supra). This Court in M/s Parameswaran Match Works case (supra) held that the purpose of the notification dated 4 September, 1967 was to enable bonafide small manufacturers of matches to earn a concessional rate of duty by filing the declaration. The small manufacturers whose estimated clearance in a year was less than 75 million matches would have availed themselves of the opportunity by making the declaration as early as possible because they would become entitled to the concessional rate of duty on their clearance from time to time.
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For the purpose of protecting the smaller manufacturers from the cometition of larger manufacturers, the Government of India, by a notification dated 21 July 1967, amended by notification dated 4 September, 1967, declared a concessional rate of duty to those manufacturers who had filed a declaration before 4 September 1967 that their estimated annual clearance would be less than 75 million match sticks. This Court in Union of India vs Parameswaran Match Works etc. ; setting aside the judgment of the High Court holding that classification was invalid, held the classification founded on a particular date to be reasonable; and the concessional rate would be availed of even by those manufacturers who came to the field after 4 September, 1967 if they satisfied the condition in clause (d) of the notification regarding quantity of matches and are recommended by the Khadi and Village Industries Commission for exemption. The respondent filed declarations on 22 December, 1967 that they would not produce more than 75 million match sticks during the year 1969 70 and claimed to be entitled to the concessional rate of excise duty. In appeal to this Court the respondents sought to support the judgment of the High Court on the grounds (i) that they were entitled to the exemption on the basis of clause (d) of the notification; and (ii) that the Khadi and Village Industries Commission was not competent to make any recommendation. Allowing the appeal, ^ HELD: (1) The appeals are covered by the decision of this Court in Parameswaran Match Works case and no case is made out by the respondents on the basis of exemption under cl. (d) of the notification. There is no allegation in the petition that the respondents came into the field after 4 September 1967 or that they started manufacturing the matches after 4 September, 1967 or that they were recommended by the Khadi and Villages Industries Commission mission. [871 D & B] (2) Under section 15(h) of the the Commission may take steps in ensuring the genuineness of, and for granting certificates to producers of, or dealers in, Khadi or the products of any village industry. Therefore, the Commission is competent to recommend for exemptions under cl. (d) of the Notification.
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What is the summary of this judgment?
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The purpose of the notification was to prevent larger units who were producing or clearing more than 100 million matches in a year and who could not have made a declaration from splitting up into smaller units in order to avail of the concessional rate of duty by making the declaration subsequently. The classification founded on a particular date was held to be reasonable because the choice of a date was to protect the smaller units in the industry from competition by the larger ones and that object would have been frustrated if by adopting the device of fragmentation, the larger units could become the ultimate beneficiaries of the bounty. Counsel for the respondents relied on an observation of this Court in M/s Parameswaran Match Works case (supra) at page 576 of the Report to the effect that the manufacturers who came to the field after 4 September, 1967 were entitled to concessional rate of duty if they satisfied the condition prescribed in clause (d) of the notification dated 4 September, 1967. In M/s Parameswaran Match Works case (supra) the match works asked for a licence on 5 September, 1967 for manufacturing matches stating that it began the industry from 5 March, 1967 and also filed a declaration that the estimated manufacture for the financial year 1967 68 would not exceed 75 million matches. Parameswaran Match Works contended there that it was denied the benefit of the concessional rate of duty on the ground that it applied for a licence and filed the declaration on 5 September, 1967 after the expiry of the fixed date. This Court held that the 871 concessional rate would be availed by them who satisfied the condition laid down in the notification.
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For the purpose of protecting the smaller manufacturers from the cometition of larger manufacturers, the Government of India, by a notification dated 21 July 1967, amended by notification dated 4 September, 1967, declared a concessional rate of duty to those manufacturers who had filed a declaration before 4 September 1967 that their estimated annual clearance would be less than 75 million match sticks. This Court in Union of India vs Parameswaran Match Works etc. ; setting aside the judgment of the High Court holding that classification was invalid, held the classification founded on a particular date to be reasonable; and the concessional rate would be availed of even by those manufacturers who came to the field after 4 September, 1967 if they satisfied the condition in clause (d) of the notification regarding quantity of matches and are recommended by the Khadi and Village Industries Commission for exemption. The respondent filed declarations on 22 December, 1967 that they would not produce more than 75 million match sticks during the year 1969 70 and claimed to be entitled to the concessional rate of excise duty. In appeal to this Court the respondents sought to support the judgment of the High Court on the grounds (i) that they were entitled to the exemption on the basis of clause (d) of the notification; and (ii) that the Khadi and Village Industries Commission was not competent to make any recommendation. Allowing the appeal, ^ HELD: (1) The appeals are covered by the decision of this Court in Parameswaran Match Works case and no case is made out by the respondents on the basis of exemption under cl. (d) of the notification. There is no allegation in the petition that the respondents came into the field after 4 September 1967 or that they started manufacturing the matches after 4 September, 1967 or that they were recommended by the Khadi and Villages Industries Commission mission. [871 D & B] (2) Under section 15(h) of the the Commission may take steps in ensuring the genuineness of, and for granting certificates to producers of, or dealers in, Khadi or the products of any village industry. Therefore, the Commission is competent to recommend for exemptions under cl. (d) of the Notification.
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What is the summary of this judgment?
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The case of the respondents as laid in the petition before the High Court was that they were claiming an order in terms of the judgment in writ petition No. 3838 of 1968. There is no allegation in the petition that the respondents came to the field after 4 September, 1967 or that they started manufacturing matches after 4 September, 1967. The notification dated 4 September, 1967 gave relief, inter alia, to factories mentioned in sub clause (d) of the notification. The factories mentioned in sub clause (d) are those "whose production during any financial year does not exceed or is not estimated to exceed 100 million matches and are recommended by the Khadi and Village Industries Commission for exemption under this notification as a bonafide cottage unit or which is set up by a cooperative society registered under any law relating to cooperative societies for the time being in force". There are no allegations in the petitions in the High Court that the respondents were recommended by the Khadi and Village Industries Commission for exemption as bonafide cottage units or were set up by cooperative society registered under any law relating to cooperative societies.
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For the purpose of protecting the smaller manufacturers from the cometition of larger manufacturers, the Government of India, by a notification dated 21 July 1967, amended by notification dated 4 September, 1967, declared a concessional rate of duty to those manufacturers who had filed a declaration before 4 September 1967 that their estimated annual clearance would be less than 75 million match sticks. This Court in Union of India vs Parameswaran Match Works etc. ; setting aside the judgment of the High Court holding that classification was invalid, held the classification founded on a particular date to be reasonable; and the concessional rate would be availed of even by those manufacturers who came to the field after 4 September, 1967 if they satisfied the condition in clause (d) of the notification regarding quantity of matches and are recommended by the Khadi and Village Industries Commission for exemption. The respondent filed declarations on 22 December, 1967 that they would not produce more than 75 million match sticks during the year 1969 70 and claimed to be entitled to the concessional rate of excise duty. In appeal to this Court the respondents sought to support the judgment of the High Court on the grounds (i) that they were entitled to the exemption on the basis of clause (d) of the notification; and (ii) that the Khadi and Village Industries Commission was not competent to make any recommendation. Allowing the appeal, ^ HELD: (1) The appeals are covered by the decision of this Court in Parameswaran Match Works case and no case is made out by the respondents on the basis of exemption under cl. (d) of the notification. There is no allegation in the petition that the respondents came into the field after 4 September 1967 or that they started manufacturing the matches after 4 September, 1967 or that they were recommended by the Khadi and Villages Industries Commission mission. [871 D & B] (2) Under section 15(h) of the the Commission may take steps in ensuring the genuineness of, and for granting certificates to producers of, or dealers in, Khadi or the products of any village industry. Therefore, the Commission is competent to recommend for exemptions under cl. (d) of the Notification.
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What is the summary of this judgment?
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No case was made by the respondents in the petitions on the basis of exemption under sub clause (d). A contention was advanced by the respondents that the Khadi and Village Industries Commission was not competent to make any recommendation as contemplated in sub clause (d). Section 15 of the which speaks of the functions of the Commission states in clauses (c), (d), (f), (g) and (h) that the Commission may take steps to provide for the sale and marketing of khadi or of products of village industries, to encourage and promote research in the development of village industries. to undertake, assist or encourage the development of village industries, to promote and encourage cooperative efforts among manufacturers of khadi and persons engaged in village industries. Section 15(h) specifically states that the Commission may take steps for ensuring the genuineness of, and for granting certificates to producers of, or dealers in, khadi or the products of any village industry. These provisions indicate that the Khadi and Village Industries Commission is competent to grant certificates recommending village industries for exemption under clause (d) of the notification dated 4 September, 1967.
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For the purpose of protecting the smaller manufacturers from the cometition of larger manufacturers, the Government of India, by a notification dated 21 July 1967, amended by notification dated 4 September, 1967, declared a concessional rate of duty to those manufacturers who had filed a declaration before 4 September 1967 that their estimated annual clearance would be less than 75 million match sticks. This Court in Union of India vs Parameswaran Match Works etc. ; setting aside the judgment of the High Court holding that classification was invalid, held the classification founded on a particular date to be reasonable; and the concessional rate would be availed of even by those manufacturers who came to the field after 4 September, 1967 if they satisfied the condition in clause (d) of the notification regarding quantity of matches and are recommended by the Khadi and Village Industries Commission for exemption. The respondent filed declarations on 22 December, 1967 that they would not produce more than 75 million match sticks during the year 1969 70 and claimed to be entitled to the concessional rate of excise duty. In appeal to this Court the respondents sought to support the judgment of the High Court on the grounds (i) that they were entitled to the exemption on the basis of clause (d) of the notification; and (ii) that the Khadi and Village Industries Commission was not competent to make any recommendation. Allowing the appeal, ^ HELD: (1) The appeals are covered by the decision of this Court in Parameswaran Match Works case and no case is made out by the respondents on the basis of exemption under cl. (d) of the notification. There is no allegation in the petition that the respondents came into the field after 4 September 1967 or that they started manufacturing the matches after 4 September, 1967 or that they were recommended by the Khadi and Villages Industries Commission mission. [871 D & B] (2) Under section 15(h) of the the Commission may take steps in ensuring the genuineness of, and for granting certificates to producers of, or dealers in, Khadi or the products of any village industry. Therefore, the Commission is competent to recommend for exemptions under cl. (d) of the Notification.
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What is the summary of this judgment?
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The appeals are all covered by the decision in M/s Parameswaran Match Works case (supra). The appeals are accepted. The orders of the High Court are set aside and the petitions are dismissed. There will be one set of costs to the appellants. P.B.R. Appeals allowed.
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For the purpose of protecting the smaller manufacturers from the cometition of larger manufacturers, the Government of India, by a notification dated 21 July 1967, amended by notification dated 4 September, 1967, declared a concessional rate of duty to those manufacturers who had filed a declaration before 4 September 1967 that their estimated annual clearance would be less than 75 million match sticks. This Court in Union of India vs Parameswaran Match Works etc. ; setting aside the judgment of the High Court holding that classification was invalid, held the classification founded on a particular date to be reasonable; and the concessional rate would be availed of even by those manufacturers who came to the field after 4 September, 1967 if they satisfied the condition in clause (d) of the notification regarding quantity of matches and are recommended by the Khadi and Village Industries Commission for exemption. The respondent filed declarations on 22 December, 1967 that they would not produce more than 75 million match sticks during the year 1969 70 and claimed to be entitled to the concessional rate of excise duty. In appeal to this Court the respondents sought to support the judgment of the High Court on the grounds (i) that they were entitled to the exemption on the basis of clause (d) of the notification; and (ii) that the Khadi and Village Industries Commission was not competent to make any recommendation. Allowing the appeal, ^ HELD: (1) The appeals are covered by the decision of this Court in Parameswaran Match Works case and no case is made out by the respondents on the basis of exemption under cl. (d) of the notification. There is no allegation in the petition that the respondents came into the field after 4 September 1967 or that they started manufacturing the matches after 4 September, 1967 or that they were recommended by the Khadi and Villages Industries Commission mission. [871 D & B] (2) Under section 15(h) of the the Commission may take steps in ensuring the genuineness of, and for granting certificates to producers of, or dealers in, Khadi or the products of any village industry. Therefore, the Commission is competent to recommend for exemptions under cl. (d) of the Notification.
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What is the summary of this judgment?
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ivil Appeal No. 707 of 1978. Appeal by Special Leave from the Judgment and Order dated 20/21st March, 1978 of the Bombay High Court in SCA No.2868/76. V. N. Ganpule and Mrs. Veena Devi Khanna, for the Appellant. V. section Desai and M. N. Shroff for Respondents 1 to 4. Mrs. Jayashree Wad for Respondent No.
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The Maharashtra Municipalities Act, 1965 by sub section (2) of section 51 provides that every person qualified to, be elected as a Councillor under section 15 shall be qualified for election as President. Section 16(1)(a) provides that no person shall be qualified to become a Councillor whether by election, co option or nomination, if he had been convicted by a Court for any offence the maximum punishment for which is imprisonment for a term of two years or more and sentenced to imprisonment for any term, unless a period of five years, or such lesser period as the Sate Government may allow, has elapsed since his release. The appellant stood for election to the office of President of the Municipal Council, filed his nomination paper on 21st October 1974, and was declared elected at the election held on 17th November, 1974. The first respondent filed an election petition before the District Judge challenging the election alleging that the appellant had been convicted on 26th December, 1973 nuder section 16 of the and sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs. 200/ and that by virtue of section 51(2) read with section 16(1)(a) of the Act the appellant was not qualified for election as President of the Municipal Council. During the pendency of the election petition the Sate Government made an order dated 20th November 1975 under clause (a) of sub section (1) of section 16, declaring that the disqualification incurred by the appellant 'should remain in force for a period of six months only from his release on 26th December, 1973 '. The District Judge allowed the election petition and the election of the appellant was set aside. The appellant filed a writ petition, which was dismissed by the High Court. In the appeal to this Court, it was contended that the order dated 20th November, 1975 made by the State Government was retrospective in operation and consequently removed the disqualification imposed on the appellant on the date he filed his nomination paper. 267 Dismissing the appeal ^ HELD: ( 1 ) The appellant does not benefit from the order of the State Government insofar as his election as President in 1974 is concerned. [270 A] (2) By virtue of clause (a) of sub section (1) of section 16, the State Government had been empowered to substitute a shorter period of disqualification. A modification of the normal operation of the statute by the State Government is contemplated. Such Q modification to be retrospective must indicate clearly that it is so. [269 E F] In the instant case, disqualification was incurred by the appellant on 26th December, 1973 when he was convicted and sentenced, and the disqualification was in force when he stood for election. The date when the disqualification for five years was incurred is the relevant date, the subsequent operation is the consequence of the incurring of the disqualification. If the order was to be beneficial to the appellant, it should have been made retrospective from the date when the disqualification was incurred. On the plain language, it must be read as an order reducing the period of disqualification to six months, due to be applied to a disqualification arising after the date when the order was made. [296 G H]
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What is the summary of this judgment?
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5. The Judgment of the Court was delivered by PATHAK, J. This Appeal by special leave is directed against the judgment of the Bombay High Court maintaining an order of the District Court, Poona by which the appellant 's election as President of the Bhor Municipal Council was set aside on an election petition filed by the respondent. The appellant stood for election to the office of President of the Bhor Municipal Council. He filed his nomination paper on 21st October, 1974, and the election was held on 17th November, 1974. The appellant was declared elected the next day and the result of the 268 election was published in the Government Gazette on 25th November, 1974.
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The Maharashtra Municipalities Act, 1965 by sub section (2) of section 51 provides that every person qualified to, be elected as a Councillor under section 15 shall be qualified for election as President. Section 16(1)(a) provides that no person shall be qualified to become a Councillor whether by election, co option or nomination, if he had been convicted by a Court for any offence the maximum punishment for which is imprisonment for a term of two years or more and sentenced to imprisonment for any term, unless a period of five years, or such lesser period as the Sate Government may allow, has elapsed since his release. The appellant stood for election to the office of President of the Municipal Council, filed his nomination paper on 21st October 1974, and was declared elected at the election held on 17th November, 1974. The first respondent filed an election petition before the District Judge challenging the election alleging that the appellant had been convicted on 26th December, 1973 nuder section 16 of the and sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs. 200/ and that by virtue of section 51(2) read with section 16(1)(a) of the Act the appellant was not qualified for election as President of the Municipal Council. During the pendency of the election petition the Sate Government made an order dated 20th November 1975 under clause (a) of sub section (1) of section 16, declaring that the disqualification incurred by the appellant 'should remain in force for a period of six months only from his release on 26th December, 1973 '. The District Judge allowed the election petition and the election of the appellant was set aside. The appellant filed a writ petition, which was dismissed by the High Court. In the appeal to this Court, it was contended that the order dated 20th November, 1975 made by the State Government was retrospective in operation and consequently removed the disqualification imposed on the appellant on the date he filed his nomination paper. 267 Dismissing the appeal ^ HELD: ( 1 ) The appellant does not benefit from the order of the State Government insofar as his election as President in 1974 is concerned. [270 A] (2) By virtue of clause (a) of sub section (1) of section 16, the State Government had been empowered to substitute a shorter period of disqualification. A modification of the normal operation of the statute by the State Government is contemplated. Such Q modification to be retrospective must indicate clearly that it is so. [269 E F] In the instant case, disqualification was incurred by the appellant on 26th December, 1973 when he was convicted and sentenced, and the disqualification was in force when he stood for election. The date when the disqualification for five years was incurred is the relevant date, the subsequent operation is the consequence of the incurring of the disqualification. If the order was to be beneficial to the appellant, it should have been made retrospective from the date when the disqualification was incurred. On the plain language, it must be read as an order reducing the period of disqualification to six months, due to be applied to a disqualification arising after the date when the order was made. [296 G H]
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What is the summary of this judgment?
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The first respondent filed an election petition before the District Court, Poona challenging the appellant 's election. He alleged that the appellant had been convicted on 26th December, 1973 by the Judicial Magistrate, Bhor under section 16 of the and sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs. 200/. Accordingly, he said, by virtue of section 51(2) read with section 16(1)(a) of the Maharashtra Municipalities Act, 1965, the appellant was not qualified for election as President of the Municipal Council. During the pendency of the election petition the Maharashtra Government made an order under cl. (a) of sub s.(l) of section 16, Maharashtra Municipalities Act,1965 ("the Act") declaring: "In exercise of the powers conferred by clause (a) of sub section (1) of Section 16 of the Maharashtra Municipalities Act, 1965, the Government is pleased to order that the disqualification incurred by Shri Amrutlal Chunilal Raval, resident of Bhor, Tehsil Bhor, District Poona, should remain in force for a period of six months only from his release on 26th December, 1973.
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The Maharashtra Municipalities Act, 1965 by sub section (2) of section 51 provides that every person qualified to, be elected as a Councillor under section 15 shall be qualified for election as President. Section 16(1)(a) provides that no person shall be qualified to become a Councillor whether by election, co option or nomination, if he had been convicted by a Court for any offence the maximum punishment for which is imprisonment for a term of two years or more and sentenced to imprisonment for any term, unless a period of five years, or such lesser period as the Sate Government may allow, has elapsed since his release. The appellant stood for election to the office of President of the Municipal Council, filed his nomination paper on 21st October 1974, and was declared elected at the election held on 17th November, 1974. The first respondent filed an election petition before the District Judge challenging the election alleging that the appellant had been convicted on 26th December, 1973 nuder section 16 of the and sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs. 200/ and that by virtue of section 51(2) read with section 16(1)(a) of the Act the appellant was not qualified for election as President of the Municipal Council. During the pendency of the election petition the Sate Government made an order dated 20th November 1975 under clause (a) of sub section (1) of section 16, declaring that the disqualification incurred by the appellant 'should remain in force for a period of six months only from his release on 26th December, 1973 '. The District Judge allowed the election petition and the election of the appellant was set aside. The appellant filed a writ petition, which was dismissed by the High Court. In the appeal to this Court, it was contended that the order dated 20th November, 1975 made by the State Government was retrospective in operation and consequently removed the disqualification imposed on the appellant on the date he filed his nomination paper. 267 Dismissing the appeal ^ HELD: ( 1 ) The appellant does not benefit from the order of the State Government insofar as his election as President in 1974 is concerned. [270 A] (2) By virtue of clause (a) of sub section (1) of section 16, the State Government had been empowered to substitute a shorter period of disqualification. A modification of the normal operation of the statute by the State Government is contemplated. Such Q modification to be retrospective must indicate clearly that it is so. [269 E F] In the instant case, disqualification was incurred by the appellant on 26th December, 1973 when he was convicted and sentenced, and the disqualification was in force when he stood for election. The date when the disqualification for five years was incurred is the relevant date, the subsequent operation is the consequence of the incurring of the disqualification. If the order was to be beneficial to the appellant, it should have been made retrospective from the date when the disqualification was incurred. On the plain language, it must be read as an order reducing the period of disqualification to six months, due to be applied to a disqualification arising after the date when the order was made. [296 G H]
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What is the summary of this judgment?
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By order and in the name of the Governor of Maharashtra. sd/ M. N. Tadkod, Desk Officer. " The election petition was allowed and the election of the appellant was set aside. The appellant filed a writ petition in the Bombay High Court against the order setting aside his election, but the writ petition was dismissed by the High Court on 21st March, 1978. In this appeal, the only point pressed by the petitioner before us is that the order dated 20th November, 1975 made by the State Government was retrospective in operation and consequently removed the disqualification imposed on the appellant on the date he filed his nomination paper. Sub s.(2) of section 51 of the Act provides that every person qualified to be elected as a Councillor under section 15 shall be qualified for election as President.
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The Maharashtra Municipalities Act, 1965 by sub section (2) of section 51 provides that every person qualified to, be elected as a Councillor under section 15 shall be qualified for election as President. Section 16(1)(a) provides that no person shall be qualified to become a Councillor whether by election, co option or nomination, if he had been convicted by a Court for any offence the maximum punishment for which is imprisonment for a term of two years or more and sentenced to imprisonment for any term, unless a period of five years, or such lesser period as the Sate Government may allow, has elapsed since his release. The appellant stood for election to the office of President of the Municipal Council, filed his nomination paper on 21st October 1974, and was declared elected at the election held on 17th November, 1974. The first respondent filed an election petition before the District Judge challenging the election alleging that the appellant had been convicted on 26th December, 1973 nuder section 16 of the and sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs. 200/ and that by virtue of section 51(2) read with section 16(1)(a) of the Act the appellant was not qualified for election as President of the Municipal Council. During the pendency of the election petition the Sate Government made an order dated 20th November 1975 under clause (a) of sub section (1) of section 16, declaring that the disqualification incurred by the appellant 'should remain in force for a period of six months only from his release on 26th December, 1973 '. The District Judge allowed the election petition and the election of the appellant was set aside. The appellant filed a writ petition, which was dismissed by the High Court. In the appeal to this Court, it was contended that the order dated 20th November, 1975 made by the State Government was retrospective in operation and consequently removed the disqualification imposed on the appellant on the date he filed his nomination paper. 267 Dismissing the appeal ^ HELD: ( 1 ) The appellant does not benefit from the order of the State Government insofar as his election as President in 1974 is concerned. [270 A] (2) By virtue of clause (a) of sub section (1) of section 16, the State Government had been empowered to substitute a shorter period of disqualification. A modification of the normal operation of the statute by the State Government is contemplated. Such Q modification to be retrospective must indicate clearly that it is so. [269 E F] In the instant case, disqualification was incurred by the appellant on 26th December, 1973 when he was convicted and sentenced, and the disqualification was in force when he stood for election. The date when the disqualification for five years was incurred is the relevant date, the subsequent operation is the consequence of the incurring of the disqualification. If the order was to be beneficial to the appellant, it should have been made retrospective from the date when the disqualification was incurred. On the plain language, it must be read as an order reducing the period of disqualification to six months, due to be applied to a disqualification arising after the date when the order was made. [296 G H]
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What is the summary of this judgment?
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Sub s.(1) of s.l5 of the Act provides that every person, whose name is included in the list of voters maintained under s.11 and who is not disqualified for being elected a Councillor under this 269 Act or any other law for the time being in force, shall be qualified, A and every person whose name is not included in the list or who is so qualified, to be elected as a Councillor at any election. Section 16(1) (a) of the Act provides: "16. (1) No person shall be qualified to become a Councillor whether by election, co option or nomination, who (a) has been convicted by a Court in India of any offence the maximum punishment for which (with or with out any other punishment) is imprisonment for a term of two years or more and sentenced to imprisonment for any term, unless a period of five years, or such lesser period as the State Government may allow in any particular, has elapsed since his release; or xx xx xx xx xx " The appellant was convicted on 26th December, 1973 for an offence under the of Food Adulteration Act, which. it is not disputed, fell within the terms of cl. (a) of sub s.(l) of s.16. He was sentenced to imprisonment until the rising of the court.
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The Maharashtra Municipalities Act, 1965 by sub section (2) of section 51 provides that every person qualified to, be elected as a Councillor under section 15 shall be qualified for election as President. Section 16(1)(a) provides that no person shall be qualified to become a Councillor whether by election, co option or nomination, if he had been convicted by a Court for any offence the maximum punishment for which is imprisonment for a term of two years or more and sentenced to imprisonment for any term, unless a period of five years, or such lesser period as the Sate Government may allow, has elapsed since his release. The appellant stood for election to the office of President of the Municipal Council, filed his nomination paper on 21st October 1974, and was declared elected at the election held on 17th November, 1974. The first respondent filed an election petition before the District Judge challenging the election alleging that the appellant had been convicted on 26th December, 1973 nuder section 16 of the and sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs. 200/ and that by virtue of section 51(2) read with section 16(1)(a) of the Act the appellant was not qualified for election as President of the Municipal Council. During the pendency of the election petition the Sate Government made an order dated 20th November 1975 under clause (a) of sub section (1) of section 16, declaring that the disqualification incurred by the appellant 'should remain in force for a period of six months only from his release on 26th December, 1973 '. The District Judge allowed the election petition and the election of the appellant was set aside. The appellant filed a writ petition, which was dismissed by the High Court. In the appeal to this Court, it was contended that the order dated 20th November, 1975 made by the State Government was retrospective in operation and consequently removed the disqualification imposed on the appellant on the date he filed his nomination paper. 267 Dismissing the appeal ^ HELD: ( 1 ) The appellant does not benefit from the order of the State Government insofar as his election as President in 1974 is concerned. [270 A] (2) By virtue of clause (a) of sub section (1) of section 16, the State Government had been empowered to substitute a shorter period of disqualification. A modification of the normal operation of the statute by the State Government is contemplated. Such Q modification to be retrospective must indicate clearly that it is so. [269 E F] In the instant case, disqualification was incurred by the appellant on 26th December, 1973 when he was convicted and sentenced, and the disqualification was in force when he stood for election. The date when the disqualification for five years was incurred is the relevant date, the subsequent operation is the consequence of the incurring of the disqualification. If the order was to be beneficial to the appellant, it should have been made retrospective from the date when the disqualification was incurred. On the plain language, it must be read as an order reducing the period of disqualification to six months, due to be applied to a disqualification arising after the date when the order was made. [296 G H]
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What is the summary of this judgment?
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Because of the conviction and sentence he suffers the disqualification contemplated by cl. (a), and the disqualification enures for a period of five years from the date of his release from imprisonment. But, by virtue of the same clause? the State Government has been empowered to substitute a shorter period,of disqualification. In other words. the ordinary run of the clause may be altered by the State Government.
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The Maharashtra Municipalities Act, 1965 by sub section (2) of section 51 provides that every person qualified to, be elected as a Councillor under section 15 shall be qualified for election as President. Section 16(1)(a) provides that no person shall be qualified to become a Councillor whether by election, co option or nomination, if he had been convicted by a Court for any offence the maximum punishment for which is imprisonment for a term of two years or more and sentenced to imprisonment for any term, unless a period of five years, or such lesser period as the Sate Government may allow, has elapsed since his release. The appellant stood for election to the office of President of the Municipal Council, filed his nomination paper on 21st October 1974, and was declared elected at the election held on 17th November, 1974. The first respondent filed an election petition before the District Judge challenging the election alleging that the appellant had been convicted on 26th December, 1973 nuder section 16 of the and sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs. 200/ and that by virtue of section 51(2) read with section 16(1)(a) of the Act the appellant was not qualified for election as President of the Municipal Council. During the pendency of the election petition the Sate Government made an order dated 20th November 1975 under clause (a) of sub section (1) of section 16, declaring that the disqualification incurred by the appellant 'should remain in force for a period of six months only from his release on 26th December, 1973 '. The District Judge allowed the election petition and the election of the appellant was set aside. The appellant filed a writ petition, which was dismissed by the High Court. In the appeal to this Court, it was contended that the order dated 20th November, 1975 made by the State Government was retrospective in operation and consequently removed the disqualification imposed on the appellant on the date he filed his nomination paper. 267 Dismissing the appeal ^ HELD: ( 1 ) The appellant does not benefit from the order of the State Government insofar as his election as President in 1974 is concerned. [270 A] (2) By virtue of clause (a) of sub section (1) of section 16, the State Government had been empowered to substitute a shorter period of disqualification. A modification of the normal operation of the statute by the State Government is contemplated. Such Q modification to be retrospective must indicate clearly that it is so. [269 E F] In the instant case, disqualification was incurred by the appellant on 26th December, 1973 when he was convicted and sentenced, and the disqualification was in force when he stood for election. The date when the disqualification for five years was incurred is the relevant date, the subsequent operation is the consequence of the incurring of the disqualification. If the order was to be beneficial to the appellant, it should have been made retrospective from the date when the disqualification was incurred. On the plain language, it must be read as an order reducing the period of disqualification to six months, due to be applied to a disqualification arising after the date when the order was made. [296 G H]
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What is the summary of this judgment?
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A modification of the normal operation of the statute is contemplated. Such a modification, to be retrospective. must indicate clearly that it is so. There is nothing in the order dated 20th November, 1975 from which it can be inferred that it has retrospective operation. What it says merely is that the disqualification incurred by the appellant shall remain in force for a period of six months only from his release on 26th December. The disqualification was incurred by the appellant on 26th December, 1973 and the disqualification was in force when he stood for election.
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The Maharashtra Municipalities Act, 1965 by sub section (2) of section 51 provides that every person qualified to, be elected as a Councillor under section 15 shall be qualified for election as President. Section 16(1)(a) provides that no person shall be qualified to become a Councillor whether by election, co option or nomination, if he had been convicted by a Court for any offence the maximum punishment for which is imprisonment for a term of two years or more and sentenced to imprisonment for any term, unless a period of five years, or such lesser period as the Sate Government may allow, has elapsed since his release. The appellant stood for election to the office of President of the Municipal Council, filed his nomination paper on 21st October 1974, and was declared elected at the election held on 17th November, 1974. The first respondent filed an election petition before the District Judge challenging the election alleging that the appellant had been convicted on 26th December, 1973 nuder section 16 of the and sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs. 200/ and that by virtue of section 51(2) read with section 16(1)(a) of the Act the appellant was not qualified for election as President of the Municipal Council. During the pendency of the election petition the Sate Government made an order dated 20th November 1975 under clause (a) of sub section (1) of section 16, declaring that the disqualification incurred by the appellant 'should remain in force for a period of six months only from his release on 26th December, 1973 '. The District Judge allowed the election petition and the election of the appellant was set aside. The appellant filed a writ petition, which was dismissed by the High Court. In the appeal to this Court, it was contended that the order dated 20th November, 1975 made by the State Government was retrospective in operation and consequently removed the disqualification imposed on the appellant on the date he filed his nomination paper. 267 Dismissing the appeal ^ HELD: ( 1 ) The appellant does not benefit from the order of the State Government insofar as his election as President in 1974 is concerned. [270 A] (2) By virtue of clause (a) of sub section (1) of section 16, the State Government had been empowered to substitute a shorter period of disqualification. A modification of the normal operation of the statute by the State Government is contemplated. Such Q modification to be retrospective must indicate clearly that it is so. [269 E F] In the instant case, disqualification was incurred by the appellant on 26th December, 1973 when he was convicted and sentenced, and the disqualification was in force when he stood for election. The date when the disqualification for five years was incurred is the relevant date, the subsequent operation is the consequence of the incurring of the disqualification. If the order was to be beneficial to the appellant, it should have been made retrospective from the date when the disqualification was incurred. On the plain language, it must be read as an order reducing the period of disqualification to six months, due to be applied to a disqualification arising after the date when the order was made. [296 G H]
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What is the summary of this judgment?
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The date when the disqualification for five years was incurred is the relevant date; the subsequent operation is merely the consequence of the incurring of the disqualification. In the order was to be beneficial to the appellant, it should have been made retrospective from the date when the disqualification was incurred. On the plain language. it must be read as an order reducing the period of disqualification to six months, but to be applied to a disqualification arising after the date when the order was made. 270 A In our opinion, the appellant does not benefit from the order the State Government insofar as his election as President in 1974 is concerned. In the circumstances, we consider it unnecessary to go into the question whether the State Government has the power under cl.
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The Maharashtra Municipalities Act, 1965 by sub section (2) of section 51 provides that every person qualified to, be elected as a Councillor under section 15 shall be qualified for election as President. Section 16(1)(a) provides that no person shall be qualified to become a Councillor whether by election, co option or nomination, if he had been convicted by a Court for any offence the maximum punishment for which is imprisonment for a term of two years or more and sentenced to imprisonment for any term, unless a period of five years, or such lesser period as the Sate Government may allow, has elapsed since his release. The appellant stood for election to the office of President of the Municipal Council, filed his nomination paper on 21st October 1974, and was declared elected at the election held on 17th November, 1974. The first respondent filed an election petition before the District Judge challenging the election alleging that the appellant had been convicted on 26th December, 1973 nuder section 16 of the and sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs. 200/ and that by virtue of section 51(2) read with section 16(1)(a) of the Act the appellant was not qualified for election as President of the Municipal Council. During the pendency of the election petition the Sate Government made an order dated 20th November 1975 under clause (a) of sub section (1) of section 16, declaring that the disqualification incurred by the appellant 'should remain in force for a period of six months only from his release on 26th December, 1973 '. The District Judge allowed the election petition and the election of the appellant was set aside. The appellant filed a writ petition, which was dismissed by the High Court. In the appeal to this Court, it was contended that the order dated 20th November, 1975 made by the State Government was retrospective in operation and consequently removed the disqualification imposed on the appellant on the date he filed his nomination paper. 267 Dismissing the appeal ^ HELD: ( 1 ) The appellant does not benefit from the order of the State Government insofar as his election as President in 1974 is concerned. [270 A] (2) By virtue of clause (a) of sub section (1) of section 16, the State Government had been empowered to substitute a shorter period of disqualification. A modification of the normal operation of the statute by the State Government is contemplated. Such Q modification to be retrospective must indicate clearly that it is so. [269 E F] In the instant case, disqualification was incurred by the appellant on 26th December, 1973 when he was convicted and sentenced, and the disqualification was in force when he stood for election. The date when the disqualification for five years was incurred is the relevant date, the subsequent operation is the consequence of the incurring of the disqualification. If the order was to be beneficial to the appellant, it should have been made retrospective from the date when the disqualification was incurred. On the plain language, it must be read as an order reducing the period of disqualification to six months, due to be applied to a disqualification arising after the date when the order was made. [296 G H]
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What is the summary of this judgment?
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(a) to make an order with retrospective effect. l[n the result, the appeal is dismissed with costs to the fifth respondent. N.V.K. Appeal dismissed.
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The Maharashtra Municipalities Act, 1965 by sub section (2) of section 51 provides that every person qualified to, be elected as a Councillor under section 15 shall be qualified for election as President. Section 16(1)(a) provides that no person shall be qualified to become a Councillor whether by election, co option or nomination, if he had been convicted by a Court for any offence the maximum punishment for which is imprisonment for a term of two years or more and sentenced to imprisonment for any term, unless a period of five years, or such lesser period as the Sate Government may allow, has elapsed since his release. The appellant stood for election to the office of President of the Municipal Council, filed his nomination paper on 21st October 1974, and was declared elected at the election held on 17th November, 1974. The first respondent filed an election petition before the District Judge challenging the election alleging that the appellant had been convicted on 26th December, 1973 nuder section 16 of the and sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs. 200/ and that by virtue of section 51(2) read with section 16(1)(a) of the Act the appellant was not qualified for election as President of the Municipal Council. During the pendency of the election petition the Sate Government made an order dated 20th November 1975 under clause (a) of sub section (1) of section 16, declaring that the disqualification incurred by the appellant 'should remain in force for a period of six months only from his release on 26th December, 1973 '. The District Judge allowed the election petition and the election of the appellant was set aside. The appellant filed a writ petition, which was dismissed by the High Court. In the appeal to this Court, it was contended that the order dated 20th November, 1975 made by the State Government was retrospective in operation and consequently removed the disqualification imposed on the appellant on the date he filed his nomination paper. 267 Dismissing the appeal ^ HELD: ( 1 ) The appellant does not benefit from the order of the State Government insofar as his election as President in 1974 is concerned. [270 A] (2) By virtue of clause (a) of sub section (1) of section 16, the State Government had been empowered to substitute a shorter period of disqualification. A modification of the normal operation of the statute by the State Government is contemplated. Such Q modification to be retrospective must indicate clearly that it is so. [269 E F] In the instant case, disqualification was incurred by the appellant on 26th December, 1973 when he was convicted and sentenced, and the disqualification was in force when he stood for election. The date when the disqualification for five years was incurred is the relevant date, the subsequent operation is the consequence of the incurring of the disqualification. If the order was to be beneficial to the appellant, it should have been made retrospective from the date when the disqualification was incurred. On the plain language, it must be read as an order reducing the period of disqualification to six months, due to be applied to a disqualification arising after the date when the order was made. [296 G H]
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What is the summary of this judgment?
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XXIX of 1950. Application under article 32 of the Constitution of India for a writ of certiorari and prohibition. The facts are stated in the judgment. N.C. Chatterjee (B. Banerji, with him) for the petition er. M.C. Setalvad, Attorney General for India, (section M. Sikri, with him) for the respondent.
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Section 7 (1) (c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi provided that "the Provincial Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a a printer, publisher or editor require that any matter relating to a 606 particular subject or class of subjects shall before publi cation be submitted for scrutiny. " Held per KANIA C. J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting) that inasmuch as section 7 (1) (c) authorised the imposition of restrictions on the fundamental right of freedom of speech and expression guaranteed by article 19 (1.) (a) of the Consti tution for the purpose of preventing activities prejudicial to public safety and maintenance of public order, it was not a law relating to "a matter which undermines the security of or tends to overthrow, the State" within the meaning of the saving provisions contained in cl. (9.) of article 19 and was therefore unconstitutional and void. Romesh Thappar vs The State ([1950] S.C.R. 594) followed. Per FAZL ALI J. The expression "public safety" has, as a result of a long course of legislative practice acquired a well recognised meaning and may be taken to denote safety or security of the State; and, though the expression "public order" is wide enough to cover small disturbances of the peace which do not jeopardise the security of the State yet, prominence given in the Act to public safety, the fact that the Act is a piece of special legislation providing for special measures and the aim and scope of the Act in gener al, show that preservation of public safety is the dominant purpose of the Act, and "public order" may well be para phrased in the context as "public tranquillity". Public disorders which disturb the public tranquillity do undermine the security of the State and as section 7 (1) (c) of the im pugned Act is aimed at preventing such disorders it is difficult to hold that it falls outside the ambit of article 19 (2) of the Constitution. Held by the Full Court. The imposition of pre censor ship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a). Black stone 's Commentaries referred to.
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What is the summary of this judgment?
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May 26. The judgment of Kania C.J., Patanjali Sastri, Mehr Chand Mahajan, Mukherjea and Das JJ. was deliv ered by Patanjali Sastri J. Fazl Ali J. delivered a separate dissenting judgment, 607 PATANJALI SASTRI J. This is an application under arti cle 32 of the Constitution praying for the issue of writs of certiorari and prohibition to the respondent, the Chief Commissioner of Delhi, with a view to examine the legality of and quash the order made by him in regard to an English weekly of Delhi called the Organizer of which the first applicant is the printer and publisher, and the second is the editor. On 2nd March, 1950, the respondent, in exercise of powers conferred on him by section 7 (1) (c) of the East Punjab Public Safety Act, 1949, which has been extended to the Delhi Province and is hereinafter referred to as the impugned Act, issued the following order: "Whereas the Chief Commissioner, Delhi, is satisfied that Organizer, an English weekly of Delhi, has been pub lishing highly objectionable matter constituting a threat to public law and order and that action as is hereinafter mentioned is necessary for the purpose of preventing or combating activities prejudicial to the public safety or the maintenance of public order. Now there more in exercise of the powers conferred by section 7 (1)(c) of the East Punjab Public Safety Act, 1949, as extended to the Delhi Province, I, Shankar Prasad, Chief Commissioner, Delhi, do by this order require you Shri Brij Bhushan, Printer and Publisher and Shri K.R.
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Section 7 (1) (c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi provided that "the Provincial Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a a printer, publisher or editor require that any matter relating to a 606 particular subject or class of subjects shall before publi cation be submitted for scrutiny. " Held per KANIA C. J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting) that inasmuch as section 7 (1) (c) authorised the imposition of restrictions on the fundamental right of freedom of speech and expression guaranteed by article 19 (1.) (a) of the Consti tution for the purpose of preventing activities prejudicial to public safety and maintenance of public order, it was not a law relating to "a matter which undermines the security of or tends to overthrow, the State" within the meaning of the saving provisions contained in cl. (9.) of article 19 and was therefore unconstitutional and void. Romesh Thappar vs The State ([1950] S.C.R. 594) followed. Per FAZL ALI J. The expression "public safety" has, as a result of a long course of legislative practice acquired a well recognised meaning and may be taken to denote safety or security of the State; and, though the expression "public order" is wide enough to cover small disturbances of the peace which do not jeopardise the security of the State yet, prominence given in the Act to public safety, the fact that the Act is a piece of special legislation providing for special measures and the aim and scope of the Act in gener al, show that preservation of public safety is the dominant purpose of the Act, and "public order" may well be para phrased in the context as "public tranquillity". Public disorders which disturb the public tranquillity do undermine the security of the State and as section 7 (1) (c) of the im pugned Act is aimed at preventing such disorders it is difficult to hold that it falls outside the ambit of article 19 (2) of the Constitution. Held by the Full Court. The imposition of pre censor ship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a). Black stone 's Commentaries referred to.
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What is the summary of this judgment?
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Halkani, Editor of the aforesaid paper to submit for scrutiny, in duplicate, before publication, till further orders, all communal matter and news and views about Pakistan including photographs and cartoons other than those derived from official sources or supplied by the news agencies, viz., Press Trust of India, United Press of India and United Press of America to the Provincial Press Officer, or in his absence, to Superintend ent of Press Branch at his office at 5, Alipur Road, Civil Lines, Delhi, between the hours 10 a.m. and 5 p.m. on work ing days. " The only point argued before us relates to the consti tutional validity of section 7 (1) (c) of the impugned Act which, as appears from its preamble, was passed "to provide special measures to ensure public safety 608 and maintenance of public order. " Section 7 (1) (c) under which the aforesaid order purports to have been made reads (so far as material here) as follows : "The Provincial Government or any authority authorised by it in this behalf if satisfied that such action is neces sary for the purpose of preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a print er, publisher or editor require that any matter relating to a particular subject or class of subjects shall before publication be submitted for scrutiny." The petitioners claim that this provision infringes the fundamental right to the freedom of speech and expression conferred upon them by article 19 (1) (a) of the Constitu tion inasmuch as it authorises the imposition of a restric tion on the publication of the journal which is not justi fied under clause (2) of that article. There can be little doubt that the imposition of precen sorship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a). As pointed out by Blackstone in his Commentaries "the liberty of the press consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published.
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Section 7 (1) (c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi provided that "the Provincial Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a a printer, publisher or editor require that any matter relating to a 606 particular subject or class of subjects shall before publi cation be submitted for scrutiny. " Held per KANIA C. J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting) that inasmuch as section 7 (1) (c) authorised the imposition of restrictions on the fundamental right of freedom of speech and expression guaranteed by article 19 (1.) (a) of the Consti tution for the purpose of preventing activities prejudicial to public safety and maintenance of public order, it was not a law relating to "a matter which undermines the security of or tends to overthrow, the State" within the meaning of the saving provisions contained in cl. (9.) of article 19 and was therefore unconstitutional and void. Romesh Thappar vs The State ([1950] S.C.R. 594) followed. Per FAZL ALI J. The expression "public safety" has, as a result of a long course of legislative practice acquired a well recognised meaning and may be taken to denote safety or security of the State; and, though the expression "public order" is wide enough to cover small disturbances of the peace which do not jeopardise the security of the State yet, prominence given in the Act to public safety, the fact that the Act is a piece of special legislation providing for special measures and the aim and scope of the Act in gener al, show that preservation of public safety is the dominant purpose of the Act, and "public order" may well be para phrased in the context as "public tranquillity". Public disorders which disturb the public tranquillity do undermine the security of the State and as section 7 (1) (c) of the im pugned Act is aimed at preventing such disorders it is difficult to hold that it falls outside the ambit of article 19 (2) of the Constitution. Held by the Full Court. The imposition of pre censor ship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a). Black stone 's Commentaries referred to.
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What is the summary of this judgment?
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Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press(1). The only question therefore is whether section 7 (1)(c) which authorises the imposition of such a restriction falls within the reservation of clause (2) of article 19. As this question turns on considerations which are essentially the same as those on which our decision in Petition No. XVI of 1950(2) was based, our judgment in that case concludes the present case also. Accordingly, for the reasons indicated in that judgment, we allow this petition and hereby quash the impugned order of the Chief Commission er, Delhi, dated the 2nd March, 1950. (1) Blackstone 's Commentaries, Vol.
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Section 7 (1) (c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi provided that "the Provincial Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a a printer, publisher or editor require that any matter relating to a 606 particular subject or class of subjects shall before publi cation be submitted for scrutiny. " Held per KANIA C. J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting) that inasmuch as section 7 (1) (c) authorised the imposition of restrictions on the fundamental right of freedom of speech and expression guaranteed by article 19 (1.) (a) of the Consti tution for the purpose of preventing activities prejudicial to public safety and maintenance of public order, it was not a law relating to "a matter which undermines the security of or tends to overthrow, the State" within the meaning of the saving provisions contained in cl. (9.) of article 19 and was therefore unconstitutional and void. Romesh Thappar vs The State ([1950] S.C.R. 594) followed. Per FAZL ALI J. The expression "public safety" has, as a result of a long course of legislative practice acquired a well recognised meaning and may be taken to denote safety or security of the State; and, though the expression "public order" is wide enough to cover small disturbances of the peace which do not jeopardise the security of the State yet, prominence given in the Act to public safety, the fact that the Act is a piece of special legislation providing for special measures and the aim and scope of the Act in gener al, show that preservation of public safety is the dominant purpose of the Act, and "public order" may well be para phrased in the context as "public tranquillity". Public disorders which disturb the public tranquillity do undermine the security of the State and as section 7 (1) (c) of the im pugned Act is aimed at preventing such disorders it is difficult to hold that it falls outside the ambit of article 19 (2) of the Constitution. Held by the Full Court. The imposition of pre censor ship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a). Black stone 's Commentaries referred to.
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What is the summary of this judgment?
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IV, pp. 151, 152. (2) Romesh Thappar vs The State of Madras, supra p. 594. 609 FAZL ALI J. The question raised in this case relates to the validity of 'section 7 (1) (c) of the East Punjab Public Safety Act, 1949 (as extended to the Province of Delhi), which runs as follows : "The Provincial Government or any authority authorised by it in this behalf if satisfied that such action is neces sary for the purpose of preventing or combating any activity prejudicial to the public safety or the maintenance of public order, may, by order in writing addressed to a print er, publisher or editor * * * * (c) require that any matter relating to a particular subject or class of subjects shall before publication be submitted for scrutiny;" It should be noted that the provisions of sub clause (c) arc not in general terms but are confined to a "particular subject or class of subjects," and that having regard to the context in which these words are used, they must be connect ed with "public safety or the maintenance of public order. " The petitioners, on whose behalf this provision is assailed, are respectively the printer (and publisher) and editor of an English weekly of Delhi called Organizer, and they pray for the issue of writs of certiorari and prohibi tion to the Chief Commissioner, Delhi, with a view ' 'to examine and review the legality" of and "restrain the operation" of and "quash" the order made by him on the 2nd March, 1950, under the impugned section, directing them "to submit for scrutiny, in duplicate, before publication, till further orders, all communal matter and news and views about Pakistan including photographs and cartoons other than those derived from official sources or supplied by the news agencies. "
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Section 7 (1) (c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi provided that "the Provincial Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a a printer, publisher or editor require that any matter relating to a 606 particular subject or class of subjects shall before publi cation be submitted for scrutiny. " Held per KANIA C. J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting) that inasmuch as section 7 (1) (c) authorised the imposition of restrictions on the fundamental right of freedom of speech and expression guaranteed by article 19 (1.) (a) of the Consti tution for the purpose of preventing activities prejudicial to public safety and maintenance of public order, it was not a law relating to "a matter which undermines the security of or tends to overthrow, the State" within the meaning of the saving provisions contained in cl. (9.) of article 19 and was therefore unconstitutional and void. Romesh Thappar vs The State ([1950] S.C.R. 594) followed. Per FAZL ALI J. The expression "public safety" has, as a result of a long course of legislative practice acquired a well recognised meaning and may be taken to denote safety or security of the State; and, though the expression "public order" is wide enough to cover small disturbances of the peace which do not jeopardise the security of the State yet, prominence given in the Act to public safety, the fact that the Act is a piece of special legislation providing for special measures and the aim and scope of the Act in gener al, show that preservation of public safety is the dominant purpose of the Act, and "public order" may well be para phrased in the context as "public tranquillity". Public disorders which disturb the public tranquillity do undermine the security of the State and as section 7 (1) (c) of the im pugned Act is aimed at preventing such disorders it is difficult to hold that it falls outside the ambit of article 19 (2) of the Constitution. Held by the Full Court. The imposition of pre censor ship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a). Black stone 's Commentaries referred to.
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What is the summary of this judgment?
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The order in question recites among other things that the Chief Commissioner is satisfied that the Organizer has been publishing highly objectionable matter constituting a threat to public law and order and that action to which reference has been made is necessary for the purpose of preventing or combating activities 610 prejudicial to the public safety or the maintenance of public order. It is contended on behalf of the petitioners that notwithstanding these recitals the order complained against is liable to be quashed, because it amounts to an infringement of the right of freedom of speech and expres sion guaranteed by article 19 (1) (a) of the Constitution. Articles 19 (1) (a) and (2), which are to be read together, run as follows : 19, (1) All citizens shall have the right (a) to freedom of speech and expression; * * * * (2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which under mines the security of, or tends to overthrow, the State. " It is contended that section 7 (1)(c) of the Act, under which the impugned order has been made, cannot be saved by clause (2) of article 19 of the Constitution, because it does not relate to any matter which undermines the security of, or tends to overthrow, the State. Thus the main ground of attack is that the impugned law is an infringement of a fundamental right and is not saved by the so called saving clause to which reference has been made. There can be no doubt that to impose pre censorship on a journal, such as has been ordered by the Chief Commissioner in this case, is a restriction on the liberty of the press which is included in the right to freedom of speech and expression guaranteed by article 19 (1) (a) of the Constitu tion, and the only question which we have therefore to decide is whether clause (2) of article 19 stands in the way of the petitioners.
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Section 7 (1) (c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi provided that "the Provincial Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a a printer, publisher or editor require that any matter relating to a 606 particular subject or class of subjects shall before publi cation be submitted for scrutiny. " Held per KANIA C. J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting) that inasmuch as section 7 (1) (c) authorised the imposition of restrictions on the fundamental right of freedom of speech and expression guaranteed by article 19 (1.) (a) of the Consti tution for the purpose of preventing activities prejudicial to public safety and maintenance of public order, it was not a law relating to "a matter which undermines the security of or tends to overthrow, the State" within the meaning of the saving provisions contained in cl. (9.) of article 19 and was therefore unconstitutional and void. Romesh Thappar vs The State ([1950] S.C.R. 594) followed. Per FAZL ALI J. The expression "public safety" has, as a result of a long course of legislative practice acquired a well recognised meaning and may be taken to denote safety or security of the State; and, though the expression "public order" is wide enough to cover small disturbances of the peace which do not jeopardise the security of the State yet, prominence given in the Act to public safety, the fact that the Act is a piece of special legislation providing for special measures and the aim and scope of the Act in gener al, show that preservation of public safety is the dominant purpose of the Act, and "public order" may well be para phrased in the context as "public tranquillity". Public disorders which disturb the public tranquillity do undermine the security of the State and as section 7 (1) (c) of the im pugned Act is aimed at preventing such disorders it is difficult to hold that it falls outside the ambit of article 19 (2) of the Constitution. Held by the Full Court. The imposition of pre censor ship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a). Black stone 's Commentaries referred to.
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What is the summary of this judgment?
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The East Punjab Public Safety Act, 1949, of which sec tion 7 is a part, was passed by the Provincial Legislature in exercise of the power conferred upon it by section 100 of the Government of India Act, 1935, is 611 read with Entry 1 of List II of the Seventh Schedule to that Act, which includes among other matters "public order." This expression in the general sense may be construed to have reference to the maintenance of what is generally known as law and order in the Province, and this is confirmed by the words which follow it in Entry 1 of List II and which have been put within brackets, viz., "but not including the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power. " It is clear that anything which affects public tranquillity within the State or the Province will also affect public order and the State Legislature is therefore competent to frame laws on matters relating to public tranquillity and public order. It was not disputed that under the Government of India Act, 1935 (under, which the impugned Act was passed) it was the responsibility of each Province to deal with all internal disorders whatever their magnitude may be and to preserve public tranquillity and order within the Province. At this stage, it will be convenient to consider the meaning of another expression "public safety" which is used throughout the impugned Act and which is also chosen by its framers for its title. This expression, though it has been variously used in different contexts (see the Indian Penal Code, Ch.
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Section 7 (1) (c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi provided that "the Provincial Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a a printer, publisher or editor require that any matter relating to a 606 particular subject or class of subjects shall before publi cation be submitted for scrutiny. " Held per KANIA C. J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting) that inasmuch as section 7 (1) (c) authorised the imposition of restrictions on the fundamental right of freedom of speech and expression guaranteed by article 19 (1.) (a) of the Consti tution for the purpose of preventing activities prejudicial to public safety and maintenance of public order, it was not a law relating to "a matter which undermines the security of or tends to overthrow, the State" within the meaning of the saving provisions contained in cl. (9.) of article 19 and was therefore unconstitutional and void. Romesh Thappar vs The State ([1950] S.C.R. 594) followed. Per FAZL ALI J. The expression "public safety" has, as a result of a long course of legislative practice acquired a well recognised meaning and may be taken to denote safety or security of the State; and, though the expression "public order" is wide enough to cover small disturbances of the peace which do not jeopardise the security of the State yet, prominence given in the Act to public safety, the fact that the Act is a piece of special legislation providing for special measures and the aim and scope of the Act in gener al, show that preservation of public safety is the dominant purpose of the Act, and "public order" may well be para phrased in the context as "public tranquillity". Public disorders which disturb the public tranquillity do undermine the security of the State and as section 7 (1) (c) of the im pugned Act is aimed at preventing such disorders it is difficult to hold that it falls outside the ambit of article 19 (2) of the Constitution. Held by the Full Court. The imposition of pre censor ship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a). Black stone 's Commentaries referred to.
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What is the summary of this judgment?
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XIV), has now acquired a well recognized meaning in relation to an Act like the impugned Act, as a result of a long course of legislative practice, and may be taken to denote safety or security of the State. In this sense, it was used in the Defence of the Realm (Consolidation) Act, 1914, as well as the Defence of India Act. and this is how it was judicially interpreted in Rex vs Governor of Wormwood Scrubbs Prison(1). The headnote of this case runs as follows "By section 1 of the Defence of the Realm (Consolidation) Act, 1914, power was given to His Majesty in Council 'during the continuance of the present war to issue regula tions. for securing the public safety and the de fence of the realm ' : (1) 612 Held, that the regulations thereby authorized were not limited to regulations for the protection of the country against foreign enemies, but included regulations designed for the prevention of internal disorder and rebellion " Thus 'public order ' and 'public safety ' are allied matters, but, in order to appreciate how they stand in relation to each other, it seems best to direct our atten tion to the opposite concepts which we may, for convenience of reference, respectively label as 'public disorder ' and 'public unsafety '. If 'public safety ' is, as we have seen, equivalent to 'security of the State ', what I have designat ed as public unsafety may be regarded as equivalent to 'insecurity of the State '.
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Section 7 (1) (c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi provided that "the Provincial Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a a printer, publisher or editor require that any matter relating to a 606 particular subject or class of subjects shall before publi cation be submitted for scrutiny. " Held per KANIA C. J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting) that inasmuch as section 7 (1) (c) authorised the imposition of restrictions on the fundamental right of freedom of speech and expression guaranteed by article 19 (1.) (a) of the Consti tution for the purpose of preventing activities prejudicial to public safety and maintenance of public order, it was not a law relating to "a matter which undermines the security of or tends to overthrow, the State" within the meaning of the saving provisions contained in cl. (9.) of article 19 and was therefore unconstitutional and void. Romesh Thappar vs The State ([1950] S.C.R. 594) followed. Per FAZL ALI J. The expression "public safety" has, as a result of a long course of legislative practice acquired a well recognised meaning and may be taken to denote safety or security of the State; and, though the expression "public order" is wide enough to cover small disturbances of the peace which do not jeopardise the security of the State yet, prominence given in the Act to public safety, the fact that the Act is a piece of special legislation providing for special measures and the aim and scope of the Act in gener al, show that preservation of public safety is the dominant purpose of the Act, and "public order" may well be para phrased in the context as "public tranquillity". Public disorders which disturb the public tranquillity do undermine the security of the State and as section 7 (1) (c) of the im pugned Act is aimed at preventing such disorders it is difficult to hold that it falls outside the ambit of article 19 (2) of the Constitution. Held by the Full Court. The imposition of pre censor ship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a). Black stone 's Commentaries referred to.
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What is the summary of this judgment?
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When we approach the matter in this way, we find that while 'public disorder ' iS wide enough to cover a small riot or an affray and other cases where peace is disturbed by, or affects, a small group of persons, 'public unsafety ' (or insecurity of the State), will usually be connected with serious internal disorders and such disturbances of public tranquillity as jeopardize the security of the State. In order to understand the scope of the Act, it will be necessary to note that in the Act "maintenance of public order" always occurs in juxtaposition with "public safety", and the Act itself is called "The East Punjab Public Safety Act. " The prominence thus given to 'public safety ' strongly suggests that the Act was intended to deal with serious cases of public disorder which affect public safety or the security of the State, or cases in which, owing to some kind of emergency or a grave situation having arisen, even public disorders of comparatively small dimensions may have far reaching effects on the security of the State. It is to be noted that the Act purports to provide "special measures to ensure public safety and maintenance of public order. " The words "special measures" are rather important, because they show that the Act was not intended for ordinary cases or ordinary situations. The ordinary cases are provided for by the Penal Code and other existing laws, and 613 with these the Act which purports to be of a temporary Act is not apparently concerned.
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Section 7 (1) (c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi provided that "the Provincial Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a a printer, publisher or editor require that any matter relating to a 606 particular subject or class of subjects shall before publi cation be submitted for scrutiny. " Held per KANIA C. J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting) that inasmuch as section 7 (1) (c) authorised the imposition of restrictions on the fundamental right of freedom of speech and expression guaranteed by article 19 (1.) (a) of the Consti tution for the purpose of preventing activities prejudicial to public safety and maintenance of public order, it was not a law relating to "a matter which undermines the security of or tends to overthrow, the State" within the meaning of the saving provisions contained in cl. (9.) of article 19 and was therefore unconstitutional and void. Romesh Thappar vs The State ([1950] S.C.R. 594) followed. Per FAZL ALI J. The expression "public safety" has, as a result of a long course of legislative practice acquired a well recognised meaning and may be taken to denote safety or security of the State; and, though the expression "public order" is wide enough to cover small disturbances of the peace which do not jeopardise the security of the State yet, prominence given in the Act to public safety, the fact that the Act is a piece of special legislation providing for special measures and the aim and scope of the Act in gener al, show that preservation of public safety is the dominant purpose of the Act, and "public order" may well be para phrased in the context as "public tranquillity". Public disorders which disturb the public tranquillity do undermine the security of the State and as section 7 (1) (c) of the im pugned Act is aimed at preventing such disorders it is difficult to hold that it falls outside the ambit of article 19 (2) of the Constitution. Held by the Full Court. The imposition of pre censor ship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a). Black stone 's Commentaries referred to.
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What is the summary of this judgment?
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It is concerned with special measures which would presumably be required for special cases or special situations. Once this important fact is grasped and the Act is viewed in the proper perspective, much of the confusion which has been created in the course of the arguments will disappear. The line of argument advanced on behalf of the petitioners is that since the Act has been passed in exercise of the power granted by the expression "public order," used in the Government of India Act, which is a general term of wide import, and since it purports to provide for the maintenance of public order, its provisions are intended or are liable to be used for all cases of breaches of public order, be they small or insig nificant breaches or those of a grave or serious nature. This is, in my opinion, approaching the case from a wrong angle. The Act is a piece of special legislation providing for special measures and the central idea dominating it is public safety and maintenance of public order in a situation requiring special measures. It was argued that "public safety" and "maintenance of public order" are used in the Act disjunctively and they are separated by the word "or" and not "and," and therefore we cannot rule out the possibility of the Act providing for ordinary as well as serious cases of disturbance of public order and tranquillity.
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Section 7 (1) (c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi provided that "the Provincial Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a a printer, publisher or editor require that any matter relating to a 606 particular subject or class of subjects shall before publi cation be submitted for scrutiny. " Held per KANIA C. J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting) that inasmuch as section 7 (1) (c) authorised the imposition of restrictions on the fundamental right of freedom of speech and expression guaranteed by article 19 (1.) (a) of the Consti tution for the purpose of preventing activities prejudicial to public safety and maintenance of public order, it was not a law relating to "a matter which undermines the security of or tends to overthrow, the State" within the meaning of the saving provisions contained in cl. (9.) of article 19 and was therefore unconstitutional and void. Romesh Thappar vs The State ([1950] S.C.R. 594) followed. Per FAZL ALI J. The expression "public safety" has, as a result of a long course of legislative practice acquired a well recognised meaning and may be taken to denote safety or security of the State; and, though the expression "public order" is wide enough to cover small disturbances of the peace which do not jeopardise the security of the State yet, prominence given in the Act to public safety, the fact that the Act is a piece of special legislation providing for special measures and the aim and scope of the Act in gener al, show that preservation of public safety is the dominant purpose of the Act, and "public order" may well be para phrased in the context as "public tranquillity". Public disorders which disturb the public tranquillity do undermine the security of the State and as section 7 (1) (c) of the im pugned Act is aimed at preventing such disorders it is difficult to hold that it falls outside the ambit of article 19 (2) of the Constitution. Held by the Full Court. The imposition of pre censor ship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a). Black stone 's Commentaries referred to.
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What is the summary of this judgment?
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This, as I have already indicated, is a somewhat narrow and technical approach to the question. In construing the Act, we must try to get at its aim and purpose, and before the Act is declared to be invalid, we must see whether it is capable of being so construed as to bear a reasonable meaning consistent with its validity. We therefore cannot ignore the fact that preservation of public safety is the dominant purpose of the Act and that it is a special Act providing for special measures and therefore it should not be confused with an Act which is applicable to ordinary situations and to any and every trivial case of breach of public order, 614 In my opinion, the word "or" is used here not so much to separate two wholly different concepts as to show that they are closely allied concepts and can be used almost inter changeably in the context. I think that "public order" may well be paraphrased in the context as public tranquillity and the words "public safety" and "public order" may be read as equivalent to "security of the State" and "public tran quillity. " I will now advert once more to clause (2) of article 19 and state what I consider to be the reason for inserting in it the words "matter which undermines the security of, or tends to overthrow, the State. " It is well recognized in all systems of law that the right to freedom of speech and expression or freedom of the press means that any person may write or say what he pleases so long as he does not infringe the law relating to libel or slander or to blasphemous, obscene or seditious words or writings: (see Halsbury 's Laws of England, 2nd Edition, Vol.
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Section 7 (1) (c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi provided that "the Provincial Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a a printer, publisher or editor require that any matter relating to a 606 particular subject or class of subjects shall before publi cation be submitted for scrutiny. " Held per KANIA C. J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting) that inasmuch as section 7 (1) (c) authorised the imposition of restrictions on the fundamental right of freedom of speech and expression guaranteed by article 19 (1.) (a) of the Consti tution for the purpose of preventing activities prejudicial to public safety and maintenance of public order, it was not a law relating to "a matter which undermines the security of or tends to overthrow, the State" within the meaning of the saving provisions contained in cl. (9.) of article 19 and was therefore unconstitutional and void. Romesh Thappar vs The State ([1950] S.C.R. 594) followed. Per FAZL ALI J. The expression "public safety" has, as a result of a long course of legislative practice acquired a well recognised meaning and may be taken to denote safety or security of the State; and, though the expression "public order" is wide enough to cover small disturbances of the peace which do not jeopardise the security of the State yet, prominence given in the Act to public safety, the fact that the Act is a piece of special legislation providing for special measures and the aim and scope of the Act in gener al, show that preservation of public safety is the dominant purpose of the Act, and "public order" may well be para phrased in the context as "public tranquillity". Public disorders which disturb the public tranquillity do undermine the security of the State and as section 7 (1) (c) of the im pugned Act is aimed at preventing such disorders it is difficult to hold that it falls outside the ambit of article 19 (2) of the Constitution. Held by the Full Court. The imposition of pre censor ship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a). Black stone 's Commentaries referred to.
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What is the summary of this judgment?
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II, page 391). This is prac tically what has been said in clause (2) of article 19, with this difference only that instead of using the words "law relating to sedition," the framers of the Constitution have used the words mentioned above. It is interesting to note that sedition was mentioned in the original draft of the Constitution, but subsequently that word was dropped and the words which I have quoted were inserted. I think it is not difficult to discover the reason for this change and I shall briefly state in my own words what I consider it to be. The latest pronouncement by the highest Indian tribunal as to the law of sedition is to be found in Niharendu Dutt Majumdar vs The King(1) which has been quoted again and again and in which Gwyer C.J. laid down that public disor der, or the reasonable anticipation or likelihood of public disorder, is the gist of the offence of sedition and "the acts or words complained of must either incite to disorder or (1) 615 must be such as to satisfy reasonable men that is their intention or tendency. "
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Section 7 (1) (c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi provided that "the Provincial Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a a printer, publisher or editor require that any matter relating to a 606 particular subject or class of subjects shall before publi cation be submitted for scrutiny. " Held per KANIA C. J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting) that inasmuch as section 7 (1) (c) authorised the imposition of restrictions on the fundamental right of freedom of speech and expression guaranteed by article 19 (1.) (a) of the Consti tution for the purpose of preventing activities prejudicial to public safety and maintenance of public order, it was not a law relating to "a matter which undermines the security of or tends to overthrow, the State" within the meaning of the saving provisions contained in cl. (9.) of article 19 and was therefore unconstitutional and void. Romesh Thappar vs The State ([1950] S.C.R. 594) followed. Per FAZL ALI J. The expression "public safety" has, as a result of a long course of legislative practice acquired a well recognised meaning and may be taken to denote safety or security of the State; and, though the expression "public order" is wide enough to cover small disturbances of the peace which do not jeopardise the security of the State yet, prominence given in the Act to public safety, the fact that the Act is a piece of special legislation providing for special measures and the aim and scope of the Act in gener al, show that preservation of public safety is the dominant purpose of the Act, and "public order" may well be para phrased in the context as "public tranquillity". Public disorders which disturb the public tranquillity do undermine the security of the State and as section 7 (1) (c) of the im pugned Act is aimed at preventing such disorders it is difficult to hold that it falls outside the ambit of article 19 (2) of the Constitution. Held by the Full Court. The imposition of pre censor ship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a). Black stone 's Commentaries referred to.
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What is the summary of this judgment?
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For this view, the learned Chief Justice relied on certain observations of Fitzgerald J. in R.v. Sullivan (1), and he also added that he was content to adopt "the words of that learned Judge which are to be found in every book dealing with this branch of the criminal law. " There is no doubt that what Gwyer C.J. has stated in that case represents the view of a number of Judges and authors and was also the view of Sir James Stephen in regard to whom Cave J. in his charge to the jury in a case relating to the law of sedition JR. vs Burns(2) said : "The law upon the question of what is seditious and what is not is to be found stated very clearly in a book by Stephen J. who has undoubtedly a greater knowledge of crimi nal law than any other Judge who sits upon the Bench, and what he has said upon the subject of sedition was submitted to the other Judges, who sometime back were engaged with him in drafting a criminal code, and upon their report the Commissioners say that his statement of law appears to them to be stated accurately as it exists at present. " The decision of Gwyer C.J. held the field for several years until the Privy Council, dealing with a case under the Defence of India Rules, expressed the view in King Emper or vs Sadhashiv Narayan Bhalerao(3) that the test laid down by the learned Chief Justice was not applicable in India where the offence under section 124A of the Indian Penal Code should be construed with reference to the words used in that section.
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Section 7 (1) (c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi provided that "the Provincial Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a a printer, publisher or editor require that any matter relating to a 606 particular subject or class of subjects shall before publi cation be submitted for scrutiny. " Held per KANIA C. J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting) that inasmuch as section 7 (1) (c) authorised the imposition of restrictions on the fundamental right of freedom of speech and expression guaranteed by article 19 (1.) (a) of the Consti tution for the purpose of preventing activities prejudicial to public safety and maintenance of public order, it was not a law relating to "a matter which undermines the security of or tends to overthrow, the State" within the meaning of the saving provisions contained in cl. (9.) of article 19 and was therefore unconstitutional and void. Romesh Thappar vs The State ([1950] S.C.R. 594) followed. Per FAZL ALI J. The expression "public safety" has, as a result of a long course of legislative practice acquired a well recognised meaning and may be taken to denote safety or security of the State; and, though the expression "public order" is wide enough to cover small disturbances of the peace which do not jeopardise the security of the State yet, prominence given in the Act to public safety, the fact that the Act is a piece of special legislation providing for special measures and the aim and scope of the Act in gener al, show that preservation of public safety is the dominant purpose of the Act, and "public order" may well be para phrased in the context as "public tranquillity". Public disorders which disturb the public tranquillity do undermine the security of the State and as section 7 (1) (c) of the im pugned Act is aimed at preventing such disorders it is difficult to hold that it falls outside the ambit of article 19 (2) of the Constitution. Held by the Full Court. The imposition of pre censor ship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a). Black stone 's Commentaries referred to.
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What is the summary of this judgment?
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They also added : "The word 'sedition ' does not occur either in section 124A or in the Rule; it is only found as a marginal note to section 124A, and is not an operative part of the section, but merely provides the name by which the crime defined in the section will be known. (1) [1868] 11 Cox c.c. 44. (2) [1886] 16 cox 855. (8) 74 I.A. 616 There can be no justification for restricting the contents of the section by the marginal note.
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Section 7 (1) (c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi provided that "the Provincial Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a a printer, publisher or editor require that any matter relating to a 606 particular subject or class of subjects shall before publi cation be submitted for scrutiny. " Held per KANIA C. J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting) that inasmuch as section 7 (1) (c) authorised the imposition of restrictions on the fundamental right of freedom of speech and expression guaranteed by article 19 (1.) (a) of the Consti tution for the purpose of preventing activities prejudicial to public safety and maintenance of public order, it was not a law relating to "a matter which undermines the security of or tends to overthrow, the State" within the meaning of the saving provisions contained in cl. (9.) of article 19 and was therefore unconstitutional and void. Romesh Thappar vs The State ([1950] S.C.R. 594) followed. Per FAZL ALI J. The expression "public safety" has, as a result of a long course of legislative practice acquired a well recognised meaning and may be taken to denote safety or security of the State; and, though the expression "public order" is wide enough to cover small disturbances of the peace which do not jeopardise the security of the State yet, prominence given in the Act to public safety, the fact that the Act is a piece of special legislation providing for special measures and the aim and scope of the Act in gener al, show that preservation of public safety is the dominant purpose of the Act, and "public order" may well be para phrased in the context as "public tranquillity". Public disorders which disturb the public tranquillity do undermine the security of the State and as section 7 (1) (c) of the im pugned Act is aimed at preventing such disorders it is difficult to hold that it falls outside the ambit of article 19 (2) of the Constitution. Held by the Full Court. The imposition of pre censor ship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a). Black stone 's Commentaries referred to.
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What is the summary of this judgment?
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In England there is no statutory definition of sedition; its meaning and content have been laid down in many decisions, some of which are referred to by the Chief Justice, but these decisions are not relevant when you have a statutory definition of that which is termed sedition as we have in the present case. Their Lordships are unable to find anything in the language of either section 124A or the Rule which could suggest that 'the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that this is their intention or tendency. " The framers of the Constitution must have therefore found themselves face to face with the dilemma as to whether the word "sedition" should be used in article 19 (2) and if it was to be used in what sense it was to be used. On the one hand, they must have had before their mind the very widely accepted view supported by numerous authorities that sedition was essentially an offence against public tranquil lity and was connected in some way or other with public disorder; and, on the other hand, there was the pronounce ment of the Judicial Committee that sedition as defined in the Indian Penal Code did not necessarily imply any inten tion or tendency to incite disorder. In these circumstances, it is not surprising that they decided not to use the word "sedition" in clause (2) but used the more general words which cover sedition and everything else which makes sedi tion such a serious offence. That sedition does undermine the security of the State is a matter which cannot admit of much doubt.
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Section 7 (1) (c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi provided that "the Provincial Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a a printer, publisher or editor require that any matter relating to a 606 particular subject or class of subjects shall before publi cation be submitted for scrutiny. " Held per KANIA C. J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting) that inasmuch as section 7 (1) (c) authorised the imposition of restrictions on the fundamental right of freedom of speech and expression guaranteed by article 19 (1.) (a) of the Consti tution for the purpose of preventing activities prejudicial to public safety and maintenance of public order, it was not a law relating to "a matter which undermines the security of or tends to overthrow, the State" within the meaning of the saving provisions contained in cl. (9.) of article 19 and was therefore unconstitutional and void. Romesh Thappar vs The State ([1950] S.C.R. 594) followed. Per FAZL ALI J. The expression "public safety" has, as a result of a long course of legislative practice acquired a well recognised meaning and may be taken to denote safety or security of the State; and, though the expression "public order" is wide enough to cover small disturbances of the peace which do not jeopardise the security of the State yet, prominence given in the Act to public safety, the fact that the Act is a piece of special legislation providing for special measures and the aim and scope of the Act in gener al, show that preservation of public safety is the dominant purpose of the Act, and "public order" may well be para phrased in the context as "public tranquillity". Public disorders which disturb the public tranquillity do undermine the security of the State and as section 7 (1) (c) of the im pugned Act is aimed at preventing such disorders it is difficult to hold that it falls outside the ambit of article 19 (2) of the Constitution. Held by the Full Court. The imposition of pre censor ship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a). Black stone 's Commentaries referred to.
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What is the summary of this judgment?
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That it undermines the security of the State usually through the medium of public disorder is also a matter on which eminent Judges and jurists are agreed. Therefore it is difficult to hold that public disorder or disturbance of public tranquillity are not matters which undermine the security of the State. 617 It will not be out of place to quote here the following passage from Stephen 's Criminal Law of England (Vol. II, pp. 242 and 243) : "It often happens, however, that the public peace is disturbed by offences which without tending to the subver sion of the existing political constitution practically subvert the authority of the Government over a greater or less local area for a longer or shorter time. The Bristol riots in 1832 and the Gordon riots in 1780 are instances of this kind.
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Section 7 (1) (c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi provided that "the Provincial Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a a printer, publisher or editor require that any matter relating to a 606 particular subject or class of subjects shall before publi cation be submitted for scrutiny. " Held per KANIA C. J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting) that inasmuch as section 7 (1) (c) authorised the imposition of restrictions on the fundamental right of freedom of speech and expression guaranteed by article 19 (1.) (a) of the Consti tution for the purpose of preventing activities prejudicial to public safety and maintenance of public order, it was not a law relating to "a matter which undermines the security of or tends to overthrow, the State" within the meaning of the saving provisions contained in cl. (9.) of article 19 and was therefore unconstitutional and void. Romesh Thappar vs The State ([1950] S.C.R. 594) followed. Per FAZL ALI J. The expression "public safety" has, as a result of a long course of legislative practice acquired a well recognised meaning and may be taken to denote safety or security of the State; and, though the expression "public order" is wide enough to cover small disturbances of the peace which do not jeopardise the security of the State yet, prominence given in the Act to public safety, the fact that the Act is a piece of special legislation providing for special measures and the aim and scope of the Act in gener al, show that preservation of public safety is the dominant purpose of the Act, and "public order" may well be para phrased in the context as "public tranquillity". Public disorders which disturb the public tranquillity do undermine the security of the State and as section 7 (1) (c) of the im pugned Act is aimed at preventing such disorders it is difficult to hold that it falls outside the ambit of article 19 (2) of the Constitution. Held by the Full Court. The imposition of pre censor ship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a). Black stone 's Commentaries referred to.
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What is the summary of this judgment?
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No definite line can be drawn between insur rections of this sort, ordinary riots, and unlawful assem blies. The difference between a meeting stormy enough to cause well founded fear of a breach of the peace, and a civil war the result of which may determine the course of a nation 's history for centuries, is a difference of degree. Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other, and are not capable of being marked off by perfectly definite boundaries, All of them have in common one feature, namely, that the normal tranquillity of a civilised society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it. Another class of offences against public tranquillity are those in which no actual force is either employed or displayed, but in which steps are taken tending to cause it. These are the formation of secret societies, seditious conspiracies, libels or words spoken. Under these two heads all offences against the internal public tranquillity of the State may be arranged. "
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Section 7 (1) (c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi provided that "the Provincial Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a a printer, publisher or editor require that any matter relating to a 606 particular subject or class of subjects shall before publi cation be submitted for scrutiny. " Held per KANIA C. J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting) that inasmuch as section 7 (1) (c) authorised the imposition of restrictions on the fundamental right of freedom of speech and expression guaranteed by article 19 (1.) (a) of the Consti tution for the purpose of preventing activities prejudicial to public safety and maintenance of public order, it was not a law relating to "a matter which undermines the security of or tends to overthrow, the State" within the meaning of the saving provisions contained in cl. (9.) of article 19 and was therefore unconstitutional and void. Romesh Thappar vs The State ([1950] S.C.R. 594) followed. Per FAZL ALI J. The expression "public safety" has, as a result of a long course of legislative practice acquired a well recognised meaning and may be taken to denote safety or security of the State; and, though the expression "public order" is wide enough to cover small disturbances of the peace which do not jeopardise the security of the State yet, prominence given in the Act to public safety, the fact that the Act is a piece of special legislation providing for special measures and the aim and scope of the Act in gener al, show that preservation of public safety is the dominant purpose of the Act, and "public order" may well be para phrased in the context as "public tranquillity". Public disorders which disturb the public tranquillity do undermine the security of the State and as section 7 (1) (c) of the im pugned Act is aimed at preventing such disorders it is difficult to hold that it falls outside the ambit of article 19 (2) of the Constitution. Held by the Full Court. The imposition of pre censor ship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a). Black stone 's Commentaries referred to.
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What is the summary of this judgment?
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This passage brings out two matters with remarkable clarity. It shows firstly that sedition is essentially an offence against public tranquillity and secondly that broadly speaking there are two classes of offences against public tranquillity: (a) those accompanied by violence including disorders which 618 affect tranquillity of a considerable number of persons or an extensive local area, and (b) those not accompanied by violence but tending to cause it, such as seditious utter ances, seditious conspiracies, etc. Both these classes of offences are such as will undermine the security of the State or tend to overthrow it if left unchecked, and, as I have tried to point out, there is a good deal of authorita tive opinion in favour of the view that the gravity ascribed to sedition is due to the fact that it tends to seriously affect the tranquillity and security of the State. In principle, then, it would not have been logical to refer to sedition in clause (2) of article 19 and omit matters which are no less grave and which have equal potentiality for undermining the security of the State. It appears that the framers of the Constitution preferred to adopt the logical course and have used the more general and basic words which are apt to cover sedition as well as other matters which are as detrimental to the security of the State as sedition. If the Act is to be viewed as I have suggested, it is difficult to hold that section 7 (1) (c) falls outside the ambit of article 19 (2).
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Section 7 (1) (c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi provided that "the Provincial Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a a printer, publisher or editor require that any matter relating to a 606 particular subject or class of subjects shall before publi cation be submitted for scrutiny. " Held per KANIA C. J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting) that inasmuch as section 7 (1) (c) authorised the imposition of restrictions on the fundamental right of freedom of speech and expression guaranteed by article 19 (1.) (a) of the Consti tution for the purpose of preventing activities prejudicial to public safety and maintenance of public order, it was not a law relating to "a matter which undermines the security of or tends to overthrow, the State" within the meaning of the saving provisions contained in cl. (9.) of article 19 and was therefore unconstitutional and void. Romesh Thappar vs The State ([1950] S.C.R. 594) followed. Per FAZL ALI J. The expression "public safety" has, as a result of a long course of legislative practice acquired a well recognised meaning and may be taken to denote safety or security of the State; and, though the expression "public order" is wide enough to cover small disturbances of the peace which do not jeopardise the security of the State yet, prominence given in the Act to public safety, the fact that the Act is a piece of special legislation providing for special measures and the aim and scope of the Act in gener al, show that preservation of public safety is the dominant purpose of the Act, and "public order" may well be para phrased in the context as "public tranquillity". Public disorders which disturb the public tranquillity do undermine the security of the State and as section 7 (1) (c) of the im pugned Act is aimed at preventing such disorders it is difficult to hold that it falls outside the ambit of article 19 (2) of the Constitution. Held by the Full Court. The imposition of pre censor ship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a). Black stone 's Commentaries referred to.
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What is the summary of this judgment?
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That clause clearly states that nothing in clause (1) (a) shall affect the operation of any existing law relating to any matter which undermines the security of, or tends to overthrow, the State. I have tried to show that public disorders and disturbance of public tranquillity do undermine the security of the State and if the Act is a law aimed at preventing such disorders, it fulfils the requirement of the Constitution. It is needless to add that the word "State" has been defined in article 12 of the Constitution to include "the Government and Parlia ment of India and the Government and Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. " I find that section 20 of the impugned Act provides that the Provincial Government may by notification 619 declare that the whole or any part of the Province as may be specified in the notification is a dangerously disturbed area. This provision has some bearing on the aim and object of the Act, and we cannot overlook it when considering its scope. It may be incidentally mentioned that we have been informed that, under this section, Delhi Province has been notified to be a "dangerously disturbed area. "
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Section 7 (1) (c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi provided that "the Provincial Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a a printer, publisher or editor require that any matter relating to a 606 particular subject or class of subjects shall before publi cation be submitted for scrutiny. " Held per KANIA C. J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting) that inasmuch as section 7 (1) (c) authorised the imposition of restrictions on the fundamental right of freedom of speech and expression guaranteed by article 19 (1.) (a) of the Consti tution for the purpose of preventing activities prejudicial to public safety and maintenance of public order, it was not a law relating to "a matter which undermines the security of or tends to overthrow, the State" within the meaning of the saving provisions contained in cl. (9.) of article 19 and was therefore unconstitutional and void. Romesh Thappar vs The State ([1950] S.C.R. 594) followed. Per FAZL ALI J. The expression "public safety" has, as a result of a long course of legislative practice acquired a well recognised meaning and may be taken to denote safety or security of the State; and, though the expression "public order" is wide enough to cover small disturbances of the peace which do not jeopardise the security of the State yet, prominence given in the Act to public safety, the fact that the Act is a piece of special legislation providing for special measures and the aim and scope of the Act in gener al, show that preservation of public safety is the dominant purpose of the Act, and "public order" may well be para phrased in the context as "public tranquillity". Public disorders which disturb the public tranquillity do undermine the security of the State and as section 7 (1) (c) of the im pugned Act is aimed at preventing such disorders it is difficult to hold that it falls outside the ambit of article 19 (2) of the Constitution. Held by the Full Court. The imposition of pre censor ship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a). Black stone 's Commentaries referred to.
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What is the summary of this judgment?
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It must be recognized that freedom of speech and expres sion is one of the most valuable rights guaranteed to a citizen by the Constitution and should be jealously guard ed by the Courts. It must also be recognised that free political discussion is essential for the proper functioning of a democratic government, and the tendency of modern jurists is to deprecate censorship though they all agree that "liberty of the press" is not to be confused with its "licentiousness. " But the Constitution itself has pre scribed certain limits for the exercise of the freedom of speech and expression and this Court is only called upon to see whether a particular case comes within those limits. In my opinion, the law which is impugned is fully saved by article 19 (2) and if it cannot be successfully assailed it is not possible to grant the remedy which the petitioners are seeking here. As has been stated already, the order which is impugned in this case recites that the weekly Organizer has been publishing highly objectionable matter constituting a threat to public law and order" and that the action which it is proposed to take against the petitioners "is necessary for the purpose of preventing or combating activities prejudi cial to public safety or the maintenance of public order. " These facts are supported by an affidavit sworn by the Home Secretary to the Chief Commissioner, who also states among other things that the order in question was passed by the Chief Commissioner in consultation with the Central Press Advisory Committee, which is an independent body elected by the All India Newspaper Editors ' Conference and is composed of 620 representatives of some of the leading papers such as The Hindustan Times, Statesman, etc.
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Section 7 (1) (c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi provided that "the Provincial Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a a printer, publisher or editor require that any matter relating to a 606 particular subject or class of subjects shall before publi cation be submitted for scrutiny. " Held per KANIA C. J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting) that inasmuch as section 7 (1) (c) authorised the imposition of restrictions on the fundamental right of freedom of speech and expression guaranteed by article 19 (1.) (a) of the Consti tution for the purpose of preventing activities prejudicial to public safety and maintenance of public order, it was not a law relating to "a matter which undermines the security of or tends to overthrow, the State" within the meaning of the saving provisions contained in cl. (9.) of article 19 and was therefore unconstitutional and void. Romesh Thappar vs The State ([1950] S.C.R. 594) followed. Per FAZL ALI J. The expression "public safety" has, as a result of a long course of legislative practice acquired a well recognised meaning and may be taken to denote safety or security of the State; and, though the expression "public order" is wide enough to cover small disturbances of the peace which do not jeopardise the security of the State yet, prominence given in the Act to public safety, the fact that the Act is a piece of special legislation providing for special measures and the aim and scope of the Act in gener al, show that preservation of public safety is the dominant purpose of the Act, and "public order" may well be para phrased in the context as "public tranquillity". Public disorders which disturb the public tranquillity do undermine the security of the State and as section 7 (1) (c) of the im pugned Act is aimed at preventing such disorders it is difficult to hold that it falls outside the ambit of article 19 (2) of the Constitution. Held by the Full Court. The imposition of pre censor ship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a). Black stone 's Commentaries referred to.
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What is the summary of this judgment?
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In my opinion, there can be no doubt that the Chief Commissioner has purported to act in this case within the sphere within which he is permitted to act under the law, and it is beyond the power of this Court to grant the reliefs claimed by the petitioners. In these circumstances, I would dismiss the petitioners ' application. Petition allowed. Agent for the petitioners: Ganpat Rai.
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Section 7 (1) (c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi provided that "the Provincial Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for preventing or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in writing addressed to a a printer, publisher or editor require that any matter relating to a 606 particular subject or class of subjects shall before publi cation be submitted for scrutiny. " Held per KANIA C. J., PATANJALI SASTRI, MEHR CHAND MAHAJAN, MUKHERJEA and DAS JJ. (FAZL ALI J. dissenting) that inasmuch as section 7 (1) (c) authorised the imposition of restrictions on the fundamental right of freedom of speech and expression guaranteed by article 19 (1.) (a) of the Consti tution for the purpose of preventing activities prejudicial to public safety and maintenance of public order, it was not a law relating to "a matter which undermines the security of or tends to overthrow, the State" within the meaning of the saving provisions contained in cl. (9.) of article 19 and was therefore unconstitutional and void. Romesh Thappar vs The State ([1950] S.C.R. 594) followed. Per FAZL ALI J. The expression "public safety" has, as a result of a long course of legislative practice acquired a well recognised meaning and may be taken to denote safety or security of the State; and, though the expression "public order" is wide enough to cover small disturbances of the peace which do not jeopardise the security of the State yet, prominence given in the Act to public safety, the fact that the Act is a piece of special legislation providing for special measures and the aim and scope of the Act in gener al, show that preservation of public safety is the dominant purpose of the Act, and "public order" may well be para phrased in the context as "public tranquillity". Public disorders which disturb the public tranquillity do undermine the security of the State and as section 7 (1) (c) of the im pugned Act is aimed at preventing such disorders it is difficult to hold that it falls outside the ambit of article 19 (2) of the Constitution. Held by the Full Court. The imposition of pre censor ship on a journal is a restriction on the liberty of the press which is an essential part of the right to freedom of speech and expression declared by article 19 (1)(a). Black stone 's Commentaries referred to.
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What is the summary of this judgment?
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N: Criminal Appeal Nos. 657 58 of 1986. From the Judgment and Order dated 13.2.1986 of the High Court of Bombay in Criminal Application No. 120 of 1984. Dr. L.M. Singhvi, Ram Jethmalani, Dalveer Bhandari, Mrs. Madhu Bhandari, S.S. Khanduja, A.M. Khanwilkar and A.S. Bhasme for the Appearing parties.
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% A trust with the settler, her son and two others, as trustees was created. Part of the trust property included a large house. Respondents in Criminal Appeal No. 658 of 1986, were employed as Secretary and Manager of the trust between 1976 and June, 1981. On a complaint filed in the court of the Metropolitan Magistrate by one of the trustees alleging that these two officers, in conspiracy with one of the trustees, son of the settler, and his wife, had created documents showing tenancy in respect of a flat of the large house, forming part of the trust property, in favour of the aforesaid trustee 's wife, summons were directed to be issued against the aforesaid four accused for offences punishable under sections 406 and 467 read with section 34 and 120B of the IPC. The accused persons challenged the proceedings before the High Court which quashed the proceedings against two of the accused, but sustained the order of the Magistrate against the other two accused, appellants in Civil Appeal No. 657 of 1986. 931 Appeals against the aforesaid order were filed in this Court both by the two accused, whose prosecution was not quashed, as also the complainant. On behalf of the accused appellants, it was contended that the trust deed authorised the trustee to look after the affairs of the trust, but the tenancy in favour of the trustee 's wife could not be considered as creating an interest in favour of the trustee as the wife was an independent person having her own income, that there was no mens rea involved for initiating criminal proceedings and, at the most it amounted to a civil wrong, and that the court machinery should not be permitted to be utilised for private vengeance as the mother and the son had fallen out. On behalf of the complainant it was urged that in view of section 53 of the, it was a clear case of breach of trust and that every breach of trust would simultaneously be a civil wrong and a criminal offence, and an opportunity should be given to the complainant to establish his case by leading evidence, and that no objection could be taken at the preliminary stage. Allowing the appeal of the accused and dismissing the appeal of the complainant, the Court, ^ HELD: When a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations, as made, prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. [934G H; 935A] A case of breach of trust may be both a civil wrong and criminal offence. But there would be certain situations where it would predominantly be a civil wrong and may or may not amount to criminal offence. The instant case is one of that type where, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offence are wanting. [935B C] 932 Having regard to the relevant documents, including the trust deed and the correspondence following the creation of the tenancy and taking into consideration the natural relationship between the settler and the son and his wife and the fall out and the fact that the trustee 's wife does not claim any interest in the tenancy, the criminal case should not be continued. The criminal proceedings against the appellants accused are quashed. [934F; 935C D]
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What is the summary of this judgment?
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The Judgment of the Court was delivered by RANGANATH MISRA, J. Both the appeals are by special leave and are directed against the same judgment of the Bombay High Court on an application under section 482 of the Code of Criminal Procedure. The High Court by the impugned decision quashed the prosecution against two of the four accused persons. The two accused persons whose prosecution has not been quashed are appellants in Criminal Appeal No. 657 of 1986 while the complainant assails the decision of the High Court quashing the prosecution of the two accused persons in Criminal Appeal No. 658 of 1986.
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% A trust with the settler, her son and two others, as trustees was created. Part of the trust property included a large house. Respondents in Criminal Appeal No. 658 of 1986, were employed as Secretary and Manager of the trust between 1976 and June, 1981. On a complaint filed in the court of the Metropolitan Magistrate by one of the trustees alleging that these two officers, in conspiracy with one of the trustees, son of the settler, and his wife, had created documents showing tenancy in respect of a flat of the large house, forming part of the trust property, in favour of the aforesaid trustee 's wife, summons were directed to be issued against the aforesaid four accused for offences punishable under sections 406 and 467 read with section 34 and 120B of the IPC. The accused persons challenged the proceedings before the High Court which quashed the proceedings against two of the accused, but sustained the order of the Magistrate against the other two accused, appellants in Civil Appeal No. 657 of 1986. 931 Appeals against the aforesaid order were filed in this Court both by the two accused, whose prosecution was not quashed, as also the complainant. On behalf of the accused appellants, it was contended that the trust deed authorised the trustee to look after the affairs of the trust, but the tenancy in favour of the trustee 's wife could not be considered as creating an interest in favour of the trustee as the wife was an independent person having her own income, that there was no mens rea involved for initiating criminal proceedings and, at the most it amounted to a civil wrong, and that the court machinery should not be permitted to be utilised for private vengeance as the mother and the son had fallen out. On behalf of the complainant it was urged that in view of section 53 of the, it was a clear case of breach of trust and that every breach of trust would simultaneously be a civil wrong and a criminal offence, and an opportunity should be given to the complainant to establish his case by leading evidence, and that no objection could be taken at the preliminary stage. Allowing the appeal of the accused and dismissing the appeal of the complainant, the Court, ^ HELD: When a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations, as made, prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. [934G H; 935A] A case of breach of trust may be both a civil wrong and criminal offence. But there would be certain situations where it would predominantly be a civil wrong and may or may not amount to criminal offence. The instant case is one of that type where, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offence are wanting. [935B C] 932 Having regard to the relevant documents, including the trust deed and the correspondence following the creation of the tenancy and taking into consideration the natural relationship between the settler and the son and his wife and the fall out and the fact that the trustee 's wife does not claim any interest in the tenancy, the criminal case should not be continued. The criminal proceedings against the appellants accused are quashed. [934F; 935C D]
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What is the summary of this judgment?
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Rajamata Smt. Vijaya Raje Scindia of Gwalior created a trust on 23rd of February, 1966, known as "Srikrishna Madhava Trust" with four trustees in all including the settler, the other three trustees being Mr. Madhavrao Jiwajirao Scindia, Col. Eknath Trimbak Patil and Kumar Shanbhajirao Chandrojirao Angre. Madhavrao is the son of the settler while the other two, though residents of Gwalior, are not members of the family. 'Vijay Vilas ' a large house located in the Bombay city constituted a part of the trust property. Russi Homi Awary and Damodar Rangrppa Shenoy, respondents in Criminal Appeal No. 658 of 1986, were employed as Secretary and Manager respectively of the Trust between 1976 and 1982.
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% A trust with the settler, her son and two others, as trustees was created. Part of the trust property included a large house. Respondents in Criminal Appeal No. 658 of 1986, were employed as Secretary and Manager of the trust between 1976 and June, 1981. On a complaint filed in the court of the Metropolitan Magistrate by one of the trustees alleging that these two officers, in conspiracy with one of the trustees, son of the settler, and his wife, had created documents showing tenancy in respect of a flat of the large house, forming part of the trust property, in favour of the aforesaid trustee 's wife, summons were directed to be issued against the aforesaid four accused for offences punishable under sections 406 and 467 read with section 34 and 120B of the IPC. The accused persons challenged the proceedings before the High Court which quashed the proceedings against two of the accused, but sustained the order of the Magistrate against the other two accused, appellants in Civil Appeal No. 657 of 1986. 931 Appeals against the aforesaid order were filed in this Court both by the two accused, whose prosecution was not quashed, as also the complainant. On behalf of the accused appellants, it was contended that the trust deed authorised the trustee to look after the affairs of the trust, but the tenancy in favour of the trustee 's wife could not be considered as creating an interest in favour of the trustee as the wife was an independent person having her own income, that there was no mens rea involved for initiating criminal proceedings and, at the most it amounted to a civil wrong, and that the court machinery should not be permitted to be utilised for private vengeance as the mother and the son had fallen out. On behalf of the complainant it was urged that in view of section 53 of the, it was a clear case of breach of trust and that every breach of trust would simultaneously be a civil wrong and a criminal offence, and an opportunity should be given to the complainant to establish his case by leading evidence, and that no objection could be taken at the preliminary stage. Allowing the appeal of the accused and dismissing the appeal of the complainant, the Court, ^ HELD: When a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations, as made, prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. [934G H; 935A] A case of breach of trust may be both a civil wrong and criminal offence. But there would be certain situations where it would predominantly be a civil wrong and may or may not amount to criminal offence. The instant case is one of that type where, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offence are wanting. [935B C] 932 Having regard to the relevant documents, including the trust deed and the correspondence following the creation of the tenancy and taking into consideration the natural relationship between the settler and the son and his wife and the fall out and the fact that the trustee 's wife does not claim any interest in the tenancy, the criminal case should not be continued. The criminal proceedings against the appellants accused are quashed. [934F; 935C D]
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What is the summary of this judgment?
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Flat No. 15 of 'Vijay Vilas ' was in the occupation of the Sushiladevi Kathait on tenancy basis. In June, 1981, the said tenant surrendered the tenancy and on 9th of June, 1981, the 933 Secretary issued a certificate to the effect that the tenancy had terminated. On 31st of March, 1982, the said Secretary issued another certificate to the effect that the aforesaid tenancy terminated with effect from 1st April, 1980, after the entire rental liability had been liquidated. On the allegation that the two officers of the Trust in conspiracy with trustee Madhavrao and his wife Smt. Madhavi had created documents showing tenancy in respect of that flat in favour of Smt.
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% A trust with the settler, her son and two others, as trustees was created. Part of the trust property included a large house. Respondents in Criminal Appeal No. 658 of 1986, were employed as Secretary and Manager of the trust between 1976 and June, 1981. On a complaint filed in the court of the Metropolitan Magistrate by one of the trustees alleging that these two officers, in conspiracy with one of the trustees, son of the settler, and his wife, had created documents showing tenancy in respect of a flat of the large house, forming part of the trust property, in favour of the aforesaid trustee 's wife, summons were directed to be issued against the aforesaid four accused for offences punishable under sections 406 and 467 read with section 34 and 120B of the IPC. The accused persons challenged the proceedings before the High Court which quashed the proceedings against two of the accused, but sustained the order of the Magistrate against the other two accused, appellants in Civil Appeal No. 657 of 1986. 931 Appeals against the aforesaid order were filed in this Court both by the two accused, whose prosecution was not quashed, as also the complainant. On behalf of the accused appellants, it was contended that the trust deed authorised the trustee to look after the affairs of the trust, but the tenancy in favour of the trustee 's wife could not be considered as creating an interest in favour of the trustee as the wife was an independent person having her own income, that there was no mens rea involved for initiating criminal proceedings and, at the most it amounted to a civil wrong, and that the court machinery should not be permitted to be utilised for private vengeance as the mother and the son had fallen out. On behalf of the complainant it was urged that in view of section 53 of the, it was a clear case of breach of trust and that every breach of trust would simultaneously be a civil wrong and a criminal offence, and an opportunity should be given to the complainant to establish his case by leading evidence, and that no objection could be taken at the preliminary stage. Allowing the appeal of the accused and dismissing the appeal of the complainant, the Court, ^ HELD: When a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations, as made, prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. [934G H; 935A] A case of breach of trust may be both a civil wrong and criminal offence. But there would be certain situations where it would predominantly be a civil wrong and may or may not amount to criminal offence. The instant case is one of that type where, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offence are wanting. [935B C] 932 Having regard to the relevant documents, including the trust deed and the correspondence following the creation of the tenancy and taking into consideration the natural relationship between the settler and the son and his wife and the fall out and the fact that the trustee 's wife does not claim any interest in the tenancy, the criminal case should not be continued. The criminal proceedings against the appellants accused are quashed. [934F; 935C D]
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What is the summary of this judgment?
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Madhavi, a complaint was filed by trustee Angre in the Court of the Metropolitan Magistrate, 28th Court, Esplanade, Bombay on 27th July, 1983. Summons were directed to be issued against the four persons referred to above for offences punishable under sections 406, 467 read with sections 34 and 120 B of the Indian Penal Code. The accused persons challenged the proceedings before the High Court by filing an application under section 482 of the Code and prayed for quashing of the criminal case. By the impugned order dated 13th February, 1986 the High Court quashed the proceedings so far as accused Nos. 2 and 4 were concerned but sustained the order of the Metropolitan Magistrate in regard to the remaining two accused persons. Hence these appeals have been filed as already stated.
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% A trust with the settler, her son and two others, as trustees was created. Part of the trust property included a large house. Respondents in Criminal Appeal No. 658 of 1986, were employed as Secretary and Manager of the trust between 1976 and June, 1981. On a complaint filed in the court of the Metropolitan Magistrate by one of the trustees alleging that these two officers, in conspiracy with one of the trustees, son of the settler, and his wife, had created documents showing tenancy in respect of a flat of the large house, forming part of the trust property, in favour of the aforesaid trustee 's wife, summons were directed to be issued against the aforesaid four accused for offences punishable under sections 406 and 467 read with section 34 and 120B of the IPC. The accused persons challenged the proceedings before the High Court which quashed the proceedings against two of the accused, but sustained the order of the Magistrate against the other two accused, appellants in Civil Appeal No. 657 of 1986. 931 Appeals against the aforesaid order were filed in this Court both by the two accused, whose prosecution was not quashed, as also the complainant. On behalf of the accused appellants, it was contended that the trust deed authorised the trustee to look after the affairs of the trust, but the tenancy in favour of the trustee 's wife could not be considered as creating an interest in favour of the trustee as the wife was an independent person having her own income, that there was no mens rea involved for initiating criminal proceedings and, at the most it amounted to a civil wrong, and that the court machinery should not be permitted to be utilised for private vengeance as the mother and the son had fallen out. On behalf of the complainant it was urged that in view of section 53 of the, it was a clear case of breach of trust and that every breach of trust would simultaneously be a civil wrong and a criminal offence, and an opportunity should be given to the complainant to establish his case by leading evidence, and that no objection could be taken at the preliminary stage. Allowing the appeal of the accused and dismissing the appeal of the complainant, the Court, ^ HELD: When a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations, as made, prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. [934G H; 935A] A case of breach of trust may be both a civil wrong and criminal offence. But there would be certain situations where it would predominantly be a civil wrong and may or may not amount to criminal offence. The instant case is one of that type where, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offence are wanting. [935B C] 932 Having regard to the relevant documents, including the trust deed and the correspondence following the creation of the tenancy and taking into consideration the natural relationship between the settler and the son and his wife and the fall out and the fact that the trustee 's wife does not claim any interest in the tenancy, the criminal case should not be continued. The criminal proceedings against the appellants accused are quashed. [934F; 935C D]
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What is the summary of this judgment?
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The settler and the accused being mother and son, an attempt was made to bring about a settlement but that having failed the appeals have been heard on merit and are being disposed of by this common judgment. Dr. Singhvi,, learned counsel appearing for the accused appellants has contended that the criminal proceedings are without any basis and if at all, a civil wrong may be said to have been caused. According to him, the trust deed authorised trustee Madhavrao to look after the affairs of the Trust. The flat had been tenanted at a particular rent when the tenant vacated; and a new tenant had to be inducted it being the common case that the flat was intended for tenancy Madhavi wanted to be the tenant and at the rate of rent which the outgoing tenant was paying, a new tenancy was created. Under the law applicable to tenancies in Bombay, a higher rent is not chargeable and as such no higher amount of rent could be claimed by the Trust in regard to the flat. The wife of the trustee is an independent person having her own income and the tenancy in favour of Madhavi cannot be considered to be creating an interest in favour of the trustee.
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% A trust with the settler, her son and two others, as trustees was created. Part of the trust property included a large house. Respondents in Criminal Appeal No. 658 of 1986, were employed as Secretary and Manager of the trust between 1976 and June, 1981. On a complaint filed in the court of the Metropolitan Magistrate by one of the trustees alleging that these two officers, in conspiracy with one of the trustees, son of the settler, and his wife, had created documents showing tenancy in respect of a flat of the large house, forming part of the trust property, in favour of the aforesaid trustee 's wife, summons were directed to be issued against the aforesaid four accused for offences punishable under sections 406 and 467 read with section 34 and 120B of the IPC. The accused persons challenged the proceedings before the High Court which quashed the proceedings against two of the accused, but sustained the order of the Magistrate against the other two accused, appellants in Civil Appeal No. 657 of 1986. 931 Appeals against the aforesaid order were filed in this Court both by the two accused, whose prosecution was not quashed, as also the complainant. On behalf of the accused appellants, it was contended that the trust deed authorised the trustee to look after the affairs of the trust, but the tenancy in favour of the trustee 's wife could not be considered as creating an interest in favour of the trustee as the wife was an independent person having her own income, that there was no mens rea involved for initiating criminal proceedings and, at the most it amounted to a civil wrong, and that the court machinery should not be permitted to be utilised for private vengeance as the mother and the son had fallen out. On behalf of the complainant it was urged that in view of section 53 of the, it was a clear case of breach of trust and that every breach of trust would simultaneously be a civil wrong and a criminal offence, and an opportunity should be given to the complainant to establish his case by leading evidence, and that no objection could be taken at the preliminary stage. Allowing the appeal of the accused and dismissing the appeal of the complainant, the Court, ^ HELD: When a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations, as made, prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. [934G H; 935A] A case of breach of trust may be both a civil wrong and criminal offence. But there would be certain situations where it would predominantly be a civil wrong and may or may not amount to criminal offence. The instant case is one of that type where, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offence are wanting. [935B C] 932 Having regard to the relevant documents, including the trust deed and the correspondence following the creation of the tenancy and taking into consideration the natural relationship between the settler and the son and his wife and the fall out and the fact that the trustee 's wife does not claim any interest in the tenancy, the criminal case should not be continued. The criminal proceedings against the appellants accused are quashed. [934F; 935C D]
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What is the summary of this judgment?
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Dr. Singhvi further relied upon a lawyer 's notice issued on behalf of the trust calling upon Madhavi to surrender the tenancy in favour of the Trust failing which action was threatened. Madhavi volunteered to surrender the tenancy and thus there was really no 934 justification, according to Dr. Singhvi, for initiating criminal proceedings. In the facts and circumstances of the case narrated above, the appellants ' counsel contended that there was no mens rea for the offences as alleged and at the most it amounted to a civil wrong. He argued that the mother and the son had fallen out and on that score the machinery of the Court should not be permitted to be utilised for private vengeance. Mr. Jethmalani, appearing for the complainant, on the other hand, maintained that it was a clear case of breach of trust and according to him every breach of trust would simultaneously be a civil wrong and a criminal offence and if summons have been issued by the Metropolitan Magistrate on the basis of the complainant 's allegations, no objection could be taken at the preliminary stage. It is appropriate that the complainant should be given an opportunity to establish his case by leading evidence.
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% A trust with the settler, her son and two others, as trustees was created. Part of the trust property included a large house. Respondents in Criminal Appeal No. 658 of 1986, were employed as Secretary and Manager of the trust between 1976 and June, 1981. On a complaint filed in the court of the Metropolitan Magistrate by one of the trustees alleging that these two officers, in conspiracy with one of the trustees, son of the settler, and his wife, had created documents showing tenancy in respect of a flat of the large house, forming part of the trust property, in favour of the aforesaid trustee 's wife, summons were directed to be issued against the aforesaid four accused for offences punishable under sections 406 and 467 read with section 34 and 120B of the IPC. The accused persons challenged the proceedings before the High Court which quashed the proceedings against two of the accused, but sustained the order of the Magistrate against the other two accused, appellants in Civil Appeal No. 657 of 1986. 931 Appeals against the aforesaid order were filed in this Court both by the two accused, whose prosecution was not quashed, as also the complainant. On behalf of the accused appellants, it was contended that the trust deed authorised the trustee to look after the affairs of the trust, but the tenancy in favour of the trustee 's wife could not be considered as creating an interest in favour of the trustee as the wife was an independent person having her own income, that there was no mens rea involved for initiating criminal proceedings and, at the most it amounted to a civil wrong, and that the court machinery should not be permitted to be utilised for private vengeance as the mother and the son had fallen out. On behalf of the complainant it was urged that in view of section 53 of the, it was a clear case of breach of trust and that every breach of trust would simultaneously be a civil wrong and a criminal offence, and an opportunity should be given to the complainant to establish his case by leading evidence, and that no objection could be taken at the preliminary stage. Allowing the appeal of the accused and dismissing the appeal of the complainant, the Court, ^ HELD: When a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations, as made, prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. [934G H; 935A] A case of breach of trust may be both a civil wrong and criminal offence. But there would be certain situations where it would predominantly be a civil wrong and may or may not amount to criminal offence. The instant case is one of that type where, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offence are wanting. [935B C] 932 Having regard to the relevant documents, including the trust deed and the correspondence following the creation of the tenancy and taking into consideration the natural relationship between the settler and the son and his wife and the fall out and the fact that the trustee 's wife does not claim any interest in the tenancy, the criminal case should not be continued. The criminal proceedings against the appellants accused are quashed. [934F; 935C D]
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What is the summary of this judgment?
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He relied upon the provisions of section 53 of the Indian Trust Act which provides: "No trustee, and no person who has recently ceased to be a trustee, may, without the permission of a principal Civil Court of original jurisdiction, buy or become mortgagee or lessee of the trust property or any part thereof; and such permission shall not be given unless the proposed purchase, mortgage or lease is manifestly for the advantage of the beneficiary. " We have considered the relevant documents including the Trust deed as also the correspondence following the creation of the tenancy. We have also kept in view the submissions advanced on behalf of the parties by their respective counsel. We have further taken into consideration the natural relationship between the settler and the son and his wife and the fall out. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue.
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% A trust with the settler, her son and two others, as trustees was created. Part of the trust property included a large house. Respondents in Criminal Appeal No. 658 of 1986, were employed as Secretary and Manager of the trust between 1976 and June, 1981. On a complaint filed in the court of the Metropolitan Magistrate by one of the trustees alleging that these two officers, in conspiracy with one of the trustees, son of the settler, and his wife, had created documents showing tenancy in respect of a flat of the large house, forming part of the trust property, in favour of the aforesaid trustee 's wife, summons were directed to be issued against the aforesaid four accused for offences punishable under sections 406 and 467 read with section 34 and 120B of the IPC. The accused persons challenged the proceedings before the High Court which quashed the proceedings against two of the accused, but sustained the order of the Magistrate against the other two accused, appellants in Civil Appeal No. 657 of 1986. 931 Appeals against the aforesaid order were filed in this Court both by the two accused, whose prosecution was not quashed, as also the complainant. On behalf of the accused appellants, it was contended that the trust deed authorised the trustee to look after the affairs of the trust, but the tenancy in favour of the trustee 's wife could not be considered as creating an interest in favour of the trustee as the wife was an independent person having her own income, that there was no mens rea involved for initiating criminal proceedings and, at the most it amounted to a civil wrong, and that the court machinery should not be permitted to be utilised for private vengeance as the mother and the son had fallen out. On behalf of the complainant it was urged that in view of section 53 of the, it was a clear case of breach of trust and that every breach of trust would simultaneously be a civil wrong and a criminal offence, and an opportunity should be given to the complainant to establish his case by leading evidence, and that no objection could be taken at the preliminary stage. Allowing the appeal of the accused and dismissing the appeal of the complainant, the Court, ^ HELD: When a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations, as made, prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. [934G H; 935A] A case of breach of trust may be both a civil wrong and criminal offence. But there would be certain situations where it would predominantly be a civil wrong and may or may not amount to criminal offence. The instant case is one of that type where, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offence are wanting. [935B C] 932 Having regard to the relevant documents, including the trust deed and the correspondence following the creation of the tenancy and taking into consideration the natural relationship between the settler and the son and his wife and the fall out and the fact that the trustee 's wife does not claim any interest in the tenancy, the criminal case should not be continued. The criminal proceedings against the appellants accused are quashed. [934F; 935C D]
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What is the summary of this judgment?
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This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to 935 continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. Mr. Jethmalani has submitted, as we have already noted, that a case of breach of trust is both a civil wrong and a criminal offence. There would be certain situations where it would predominantly be a civil wrong and may or may not amount to a criminal offence. We are of the view that this case is one of that type where, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offences are wanting. Several decisions were cited before us in support of the respective stands taken by counsel for the parties. It is unnecessary to refer to them.
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% A trust with the settler, her son and two others, as trustees was created. Part of the trust property included a large house. Respondents in Criminal Appeal No. 658 of 1986, were employed as Secretary and Manager of the trust between 1976 and June, 1981. On a complaint filed in the court of the Metropolitan Magistrate by one of the trustees alleging that these two officers, in conspiracy with one of the trustees, son of the settler, and his wife, had created documents showing tenancy in respect of a flat of the large house, forming part of the trust property, in favour of the aforesaid trustee 's wife, summons were directed to be issued against the aforesaid four accused for offences punishable under sections 406 and 467 read with section 34 and 120B of the IPC. The accused persons challenged the proceedings before the High Court which quashed the proceedings against two of the accused, but sustained the order of the Magistrate against the other two accused, appellants in Civil Appeal No. 657 of 1986. 931 Appeals against the aforesaid order were filed in this Court both by the two accused, whose prosecution was not quashed, as also the complainant. On behalf of the accused appellants, it was contended that the trust deed authorised the trustee to look after the affairs of the trust, but the tenancy in favour of the trustee 's wife could not be considered as creating an interest in favour of the trustee as the wife was an independent person having her own income, that there was no mens rea involved for initiating criminal proceedings and, at the most it amounted to a civil wrong, and that the court machinery should not be permitted to be utilised for private vengeance as the mother and the son had fallen out. On behalf of the complainant it was urged that in view of section 53 of the, it was a clear case of breach of trust and that every breach of trust would simultaneously be a civil wrong and a criminal offence, and an opportunity should be given to the complainant to establish his case by leading evidence, and that no objection could be taken at the preliminary stage. Allowing the appeal of the accused and dismissing the appeal of the complainant, the Court, ^ HELD: When a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations, as made, prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. [934G H; 935A] A case of breach of trust may be both a civil wrong and criminal offence. But there would be certain situations where it would predominantly be a civil wrong and may or may not amount to criminal offence. The instant case is one of that type where, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offence are wanting. [935B C] 932 Having regard to the relevant documents, including the trust deed and the correspondence following the creation of the tenancy and taking into consideration the natural relationship between the settler and the son and his wife and the fall out and the fact that the trustee 's wife does not claim any interest in the tenancy, the criminal case should not be continued. The criminal proceedings against the appellants accused are quashed. [934F; 935C D]
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What is the summary of this judgment?
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In course of hearing of the appeals, Dr. Singhvi made it clear that Madhavi does not claim any interest in the tenancy. In the setting of the matter we are inclined to hold that the criminal case should not be continued. Criminal Appeal No. 657 of 1986 is allowed and the criminal prosecution against the two appellants being Madhavrao and Russi Homi Avari is quashed. In view of what we have stated above, Criminal Appeal No. 658 of 1986 has to fail and is dismissed.
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% A trust with the settler, her son and two others, as trustees was created. Part of the trust property included a large house. Respondents in Criminal Appeal No. 658 of 1986, were employed as Secretary and Manager of the trust between 1976 and June, 1981. On a complaint filed in the court of the Metropolitan Magistrate by one of the trustees alleging that these two officers, in conspiracy with one of the trustees, son of the settler, and his wife, had created documents showing tenancy in respect of a flat of the large house, forming part of the trust property, in favour of the aforesaid trustee 's wife, summons were directed to be issued against the aforesaid four accused for offences punishable under sections 406 and 467 read with section 34 and 120B of the IPC. The accused persons challenged the proceedings before the High Court which quashed the proceedings against two of the accused, but sustained the order of the Magistrate against the other two accused, appellants in Civil Appeal No. 657 of 1986. 931 Appeals against the aforesaid order were filed in this Court both by the two accused, whose prosecution was not quashed, as also the complainant. On behalf of the accused appellants, it was contended that the trust deed authorised the trustee to look after the affairs of the trust, but the tenancy in favour of the trustee 's wife could not be considered as creating an interest in favour of the trustee as the wife was an independent person having her own income, that there was no mens rea involved for initiating criminal proceedings and, at the most it amounted to a civil wrong, and that the court machinery should not be permitted to be utilised for private vengeance as the mother and the son had fallen out. On behalf of the complainant it was urged that in view of section 53 of the, it was a clear case of breach of trust and that every breach of trust would simultaneously be a civil wrong and a criminal offence, and an opportunity should be given to the complainant to establish his case by leading evidence, and that no objection could be taken at the preliminary stage. Allowing the appeal of the accused and dismissing the appeal of the complainant, the Court, ^ HELD: When a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations, as made, prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. [934G H; 935A] A case of breach of trust may be both a civil wrong and criminal offence. But there would be certain situations where it would predominantly be a civil wrong and may or may not amount to criminal offence. The instant case is one of that type where, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offence are wanting. [935B C] 932 Having regard to the relevant documents, including the trust deed and the correspondence following the creation of the tenancy and taking into consideration the natural relationship between the settler and the son and his wife and the fall out and the fact that the trustee 's wife does not claim any interest in the tenancy, the criminal case should not be continued. The criminal proceedings against the appellants accused are quashed. [934F; 935C D]
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What is the summary of this judgment?
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iminal Appeal No. 81 of 1952. Appeal by special leave from the Judgment and Order, dated 12th February, 1951, of the High Court of Judicature at Bombay in Criminal Application No. 644 of 1950. Petitions Nos. 170, 171 and 172, being Petitions under article 32 of the Constitution, were also heard along with Appeal No.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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81 of 1952. Ishwarlal C. Dalal for the appellant. M. C. Setalvad, Attorney General for India (Porus A. Mehta, with him) for the State of Bombay. section M. Sikri, Advocate General of Punjab (Jindra Lal, with him) for the State of Punjab. Jagjit Singh, Petitioner in Petition No. 170 of 1951, in person.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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Other petitioners not represented. April 17. The Judgment of the Court was delivered by Bhagwati J. 95 732 BHAGWATI J. This appeal by special leave from a judgment and order of the High Court of Judicature at Bombay raises an important question as to the construction of article 20(2) of the Constitution. The appellant, a citizen of Bharat, arrived at the Santa Cruz airport from Jeddah on the 6th November, 1949.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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On landing he did not declare that he had brought in gold with him but on search it was found that he had brought 107.2 tolas of gold in contravention of the notification of the Government of India dated the 25th August,1948. The Customs Authorities thereupon took action under section 167, clause (8), of the Sea Customs Act VIII of 1878, and confiscated the gold by an order dated the 19th December, 1949. The owner of the gold was however given the option to pay in lieu of such confiscation a fine of Rs. 12,000, which option was to be exercised within four months of the date of the order. A copy of the order was sent on the 30th January, 1950, to the appellant. Nobody came forward to redeem the gold.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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On the 22nd March, 1950, a complaint was filed in the Court of the Chief Presidency Magistrate, Bombay, against the appellant charging him with having committed an offence under section 8 of the Foreign Exchange Regulation Act VII of 1947, read with the notification dated the 25th August, 1948. The appellant thereupon on the 12th June, 1950, filed a petition in the High Court of Bombay under article 228 of the Constitution contending that his prosecution in the Court of the Chief Presidency Magistrate was in violation of the fundamental right guaranteed to him under article 20(2) of the Constitution and praying that as the case involved a substantial question of law as to the interpretation of the Constitution, the determination of which was necessary for the disposal of the case, the case may be withdrawn from the file of the Chief Presidency Magistrate to the High Court and the High Court may either dispose of the case themselves or determine the question of law and return it to the Chief Presidency Magistrate 's Court for disposal. A rule was issued by the High Court on 733 the 26th June, 1950, which came on for hearing on the 9th August, 1950, before Bavdekar and Vyas JJ. The rule was made absolute and the High Court directed that the proceedings pending against the appellant in the Court of the Chief Presidency Magistrate be withdrawn and brought before the High Court under article 228 of the Constitution. The case was thereupon withdrawn and brought before the High Court and was heard by the High Court on the 17th October, 1950. The learned Judges of the High Court, Chagla C.J.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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and Gajendragadkar J. were of the opinion that the appellant could claim the benefit of article 20(2) only if he was the owner of the gold which was confiscated and that before they decided as to whether there had been a prosecution and a punishment within the meaning of article 20(2) it was necessary that the Chief Presidency Magistrate should determine the question of fact as to whether the appellant was the owner of the gold which had been confiscated and in respect of which an option was given to him as stated above. They therefore sent the matter back to the Chief Presidency Magistrate directing him to find a; to whether the appellant was or was not the owner of the gold stating that they would deal with the application after the finding was returned. The Chief Presidency Magistrate recorded evidence and on the 20th January, 1950, recorded the finding that the appellant was the owner of the gold in question and returned the finding to the High Court. Chagla C.J. and Gajendra gadkar J. heard the petition further on the 12th February, 1951. They reversed the finding of the Chief Presidency Magistrate, dismissed the application of the appellant and directed that the case should go back to the Chief Presidency Magistrate for disposal according to law.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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The appellant obtained on the 1st November, 1951, special leave to appeal against the judgment and order passed by the High Court. The question that arises for our determination in this appeal is whether by reason of the proceedings 734 taken by the sea Customs Authorities the appellant could be said to have been prosecuted and punished for the same offence with which he was charged in the Court of the Chief Presidency Magistrate, Bombay. There is no doubt that the act which constitutes art offence under the Sea Customs Act as also an offence under the Foreign Exchange Regulation Act was one and the same, viz., importing the gold in con travention of the notification of the Government of,India dated the 25th August, 1948. The appellant could be proceeded against under section 167(8) of the Sea Customs Act as also under section 23 of the Foreign Exchange Regulation Act in respect of the said act. Proceedings were in fact taken under section 167(8) of the Sea Customs Act which resulted in the confiscation of the gold. Further proceedings were taken under section 23 of the Foreign Exchange Regulation Act by way of filing the complaint aforesaid in the Court of the Chief Presidency Magistrate ' Bombay, and the plea which was taken by the accused in bar of the prosecution in the Court of the Chief Presidency Magistrate, was that he had already been prosecuted and punished for the same offence and by virtue of the provisions of article 20(2) of the Constitution he could not be prosecuted and punished, again.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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The word offence has not been defined in the Constitution. But article 367 provides that the (Act X of 1897), shall apply for, the interpretation of the Constitution. Section 3(37) of the defines an offence to mean any act or omission made punishable by any law for the time being in force and there is no doubt that both under the provisions of section 167 (8) of the Sea Customs Act and section 23 of the Foreign Exchange Regulation Act the act of the appellant was made punishable and constituted an offence. In order however to attract the operation of article 20(2) the appellant must have been prosecuted and punished for the same offence when proceedings were taken by the Sea Customs Authorities. The 735 High Court did not go into the question as to whether the appellant was prosecuted when proceedings were taken before the Sea Customs Authorities. It considered the question of punishment in the first instance and thought it necessary to arrive at a ' finding as to the ownership of the confiscated gold before it could consider the application of the appellant.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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In the opinion of the High Court the appellant could be said to have been punished only if it were established that he was the owner of the confiscated gold. If he was the owner, the confiscation was a punishment, which would not be so if he was not the owner of the gold. This question of the ownership of the gold was not in our opinion material. The gold was found in the possession of the appellant when he landed at the Santa Cruz airport. The appellant was detained and searched by the Customs Authorities and the gold was seized from his person. Proceedings under section 167(8) were taken by the Customs Authorities and after examining witnesses an order was passed on the 19th December, 1949, confiscating the gold and giving an option to the owner to pay a fine of Rs.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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12,000 in lieu of such confiscation under section 183 of the Sea Customs Act. Copy of this order was forwarded to the appellant and for all practical purposes the appellant was treated as the owner of the confiscated gold. As a matter of fact when evidence was recorded before the Chief Presidency Magistrate on remand the Assistant Collector of Customs gave evidence that no one else had claimed the gold and had the appellant paid the penalty and obtained the Reserve Bank permit and produced the detention slip he would have been given the gold. Once the appellant was found in possession of the confiscated gold the burden of proving that be was not the owner would fall upon whosoever affirmed that he was not the owner. The complaint which was filed in the Court of the Chief Presidency Magistrate, Bombay, also proceeded on the footing that the appellant committed an offence in so far as he brought the gold without the permit from 736 the Reserve Bank of India, that no permit was ever applied for or granted to the appellant and that the appellant had been given an opportunity of showing whether he had obtained such permit but that he failed to produce the same. It appears therefore that the question of the ownership could not assume as much importance is the High Court attached to it.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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If the Court came to the conclusion that the appellant was prosecuted when proceedings were taken by the Sea Customs Authorities there was not much scope left for the argument that he was not punished by the confiscation of the gold and the option given to him to pay a fine of Rs. 12,000 in lieu of such confiscation. To be deprived of the right of possession of valuable goods may well be regarded in certain circumstances as by itself a punishment. We have therefore got to determine whether under the circumstances the appellant can be said to have been prosecuted when proceedings were taken by the Sea Customs Authorities. The fundamental right which is guaranteed in article 20(2) enunciates the principle of "autrefois convict" or "double jeopardy". The roots of that principle are to be found in the well established rule of the common law of England "that where a person has been convicted of an offence by a court of competent jurisdiction the conviction is a bar to all further criminal proceedings for the same offence."
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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(Per Charles J. in Beg. vs Miles (1). To the same effect is the ancient maxim "Nemo bis debet punire pro uno delicto", that is to say that no one ought to be twice punished for one offence or as it is sometimes written "pro eadem causa", that is, for the same cause. This is the principle on which the party pursued has available to him the plea of autrefois convict" or " autrefois acquit". " The plea of 'autrefois convict ' or 'autrefois acquit ' avers that the defendant has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned. The question for the jury (1) 737 on the issue is whether the defendant has previously been in jeopardy in respect of the charge on which he is arraigned, for the rule of law is that a person must not be put in peril twice for the same offence.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the two trials. A plea of 'autrefois acquit 'is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter." (Vide Halsbury 's Laws of England, Hailsham Edition, Vol. 9, pages 152 and 153, paragraph 212). This principle found recognition in section 26 of the, "where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence," and also in section 403 (1) of the Criminal Procedure Code, 1898, " A person who has been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237. " The Fifth Amendment of the American Constitution enunciated this principle in the manner following: "... nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be witness against himself.... 738 Willis in his Constitutional Law, at page 528, observes that the phrase "jeopardy of life or limb" indicates bat the immunity is restricted to crimes of the highest grade, and this is the way Black stone states the rule : " Yet, by a gradual process of liberal construction the courts have extended the scope of the clause to make it applicable to all indictable offences, including misdemeanours.".. "
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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Under the United States rule, to be put in jeopardy there must be a valid indictment or information duty presented to a court of competent jurisdiction, there must be an arraignment and plea, and a lawful jury must be impanelled and sworn. It is not necessary to have a verdict. The protection is not against a second punishment but against the peril in which he is placed by the jeopardy mentioned. " These were the materials which formed the background of the guarantee of fundamental right given in article 20(2). It incorporated within its scope the plea of "autrefois convict" as known to the British jurisprudence or the plea of double jeopardy as known to the American Constitution but circumscribed it by providing that there should be not only a prosecution but also a punishment in the first instance in order to operate as a bar to a second prosecution and punishment for the same offence. The 'words "before a court of law or judicial tribunal" are not to be found in article 90(2).
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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But if regard be had to the whole background indicated above it is clear that in order that the protection of article 20(2) be invoked by a citizen there must have been a prosecution and punishment in respect of the same offence before a court of law or a tribunal,required by law to decide the matters in con troversy judicially on evidence on oath which it must be authorised by law to administer and not before a tribunal which entertains a departmental or ail administrative enquiry even though set up by a statute but not required to proceed on legal evidence given on oath. The very wording of article 20 and the words used therein:" convicted commission of 739 the act charged as an offence", "be subjected to a penalty ", " commission of the offence ", " prosecuted and punished ", " accused of any offence ", would indicate, that the proceedings therein contemplated are of the nature of criminal proceedings before a court of law or a judicial tribunal and the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. The tests of a judicial tribunal were laid down by this Court in Bharat Bank Ltd., Delhi vs Employees of the Bharat Bank Ltd., Delhi(1) in the following passage quoted with approval by Mahajan and Mukherjea JJ. from Cooper vs Wilson '(2) at page 340: "A true judicial decision presupposes an existing dispute between two or more parties and then involves four requisites : (1) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) If the dispute between them is a question of fact, the ascertaiment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) If the dispute between them is a question of law, the submission of legal argument by the parties; and (4) A decision which disposes of the whole matter by a finding upon the facts in dispute and application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law. " The question whether the Sea Customs Authorities when they entertained proceedings for confiscation of the gold in question acted as a judicial tribunal has got to be determined in accordance with the above tests. The, 'was enacted to consolidate and amend the law relating to the levy of sea customs duties.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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The hierarchy of the officials are the (1) ;, (2) 96 740 Customs Collector, who is the officer of Customs for the time being in separate charge of a custom house, the Chief Customs Officer who is the Chief Executive Officer of the Sea Customs for a port and the Chief Customs Authority which is the Central Board of Revenue. Sections 18 and 19 enact prohibitions. and restrictions on importation and exportation of goods and section 19(a) provides for detention and confiscation of goods whose importation is prohibited. After making various provisions for the levy of sea customs duties, Chapter XVI enacts offences and penalties and several offences mentioned in the first column of the schedule to section 167 are made punishable with penalties mentioned in the third column thereof. Item 8 relates to the offence committed by the importation of goods contrary to the prohibition or restriction imposed in that behalf under sections 18 and 19 of the Act and penalty prescribed for such an offence is: " Such goods shall be liable to confiscation ; any person concerned in any such offence shall be liable to a penalty not exceeding three. times the value of the goods, or not exceeding one thousand rupees. "
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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Chapter XVII prescribes the procedure relating to offences, appeals, etc. Powers of search are given to the officers of customs but provision is made that a person about to be searched can, require the officer to take him previous to search before the nearest Magistrate or Customs Collector. Search warrant can only be issued by the Magistrate and can be executed in the same way and has the same effect as a search warrant issued under a law relating to criminal procedure. Powers are also given to the officers of Customs to arrest persons reasonably suspected of having committed an offence under the Act but the person arrested is to be forthwith taken before the nearest Magistrate or Customs Collector. The Magistrate is entitled either to commit such person to jail or order him to be kept in custody of the police for such time as is necessary to enable the Magistrate to communicate with the proper officers of Customs. No 741 such power is given to the Customs Collector.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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Section 181(A) also provides for the detention of packages containing certain publications imported into the States. Section 182 provides that except in the case of certain offences therein mentioned which involve proceedings before a Magistrate confiscation, increased rate of duty or penalty can be adjudged by the Customs Authorities therein mentioned and section 183 provides for option to be given to the owner of the goods confiscated to pay in lieu of confiscation such fine as the officer thinks fit, Section 186 provides that the award of any confiscation, penalty or increased rate of duty under the Act by an officer of Customs is not to prevent the infliction of any punishment to which the person affected thereby is liable under any other law. An appeal is provided under section 188 from a decision or order of the officer of Customs to the Chief Customs Authority who is thereupon to make such further enquiry and pass such order as he thinks fit confirming, altering or annulling the decision or order appealed against. Section 191 provides for a revision by the Central Government on the application of a person aggrieved by any decision or order passed by an officer of Customs or the Chief Customs Authority from which no appeal lies. Section 193 provides for the enforcement of the payment of penalty or increased rate of duty as adjudged against any person by an officer of Customs. If such officer is not able to realise the unpaid amount from other goods in charge he can notify in writing to any Magistrate within the local limits of whose jurisdiction such person may be, his name and residence and the amount of penalty or increased rate of duty unrecovered and such Magistrate is thereupon to proceed to enforce payment of the said amount in like manner as if such penalty or increased rate had been a fine inflicted by himself.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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It is clear on a perusal of the above provisions that the powers of search, arrest and detention are given to the Customs Authorities for the levy of sea customs duties and provision is made at the same time for a 742 reference to the Magistrate in all cases where search warrants are needed and detention of the arrested person is required. Certain offences of a serious nature are to be tried only by Magistrates who are the only authorities who can inflict punishments by way of imprisonment. Even though the customs officers are invested with the power of adjudging confiscation, increased rates of duty or penalty the highest penalty which can be inflicted is Rs. 1,000. Confiscation is no about one of the penalties which the Customs Authorities can impose but that is more in the nature of proceedings in rem than proceedings in personam, the object being to confiscate the offending goods which have been dealt with contrary to the provisions of the law and in respect of the confiscation also an option is given to the owner of the goods to pay in lieu of confiscation such fine as the officer thinks fit. All this is for the enforcement of the levy of and safeguarding the recovery of the customs duties.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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There is no procedure prescribed to be followed by the Customs Officer in the matter of such ad judication and the proceedings before the Customs Officers are not assimilated in any manner whatever to proceedings in courts of law according to the provisions of the Civil or the Criminal procedure Code. The Customs Officers are not required to act judicially on legal evidence tendered on oath and they are not authorised to administer oath to any witness. The appeals, if any, lie before the Chief Customs Authority which is the Central Board of Revenue and the power of revision is given to the Central Government which certainly is not a judicial authority. In the matter of the enforcement of the payment of penalty or increased rate of duty also the Customs Officer can only proceed against other goods of the party in the possession of the Customs Authorities. But if such penalty orincreased rate of duty cannot be realised therefrom the only thing which he, can do is to notify the matter to the appropriate Magistrate who is the only person empowered to enforce payment as if such penalty or 743 increased rate of duty had been a fine inflicted by himself. The process of recovery can be issued only by the Magistrate and not by the Customs Authority.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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All these provisions go to show that far from being authorities bound by any rules of evidence or procedure established by law and invested with power to enforce their own judgments or orders the Sea Customs Authorities are merely constituted administrative machinery for the purpose of adjudging confiscation, increased rates of duty and penalty prescribed in the Act. The same view of the functions and powers of Sea Customs Officers was expressed in& decision of the Bombay High Court to which our attention was called. (See Mahadev Ganesh Jamsandekar vs The Secretary of State for India in Council(1). We are of the opinion that the Sea Customs Authorities are not a judicial tribunal and the adjudging of confiscation, increased rate of duty or penalty under the provisions of the do not constitute a judgment or order of a court or judicial tribunal necessary for the purpose of supporting a plea of double jeopardy. It therefore follows that when the Customs Authorities confiscated the gold in question neither the proceedings taken before the Sea Customs Authorities constituted a prosecution of the appellant nor did the order of confiscation constitute a punishment inflicted by a court or judicial tribunal on the appellant. The appellant could not be said by reason of these proceedings before the Sea Customs Authorities to have been "Prosecuted and punished" for the same offence with which he was charged before the Chief Presidency Magistrate, Bombay, in the complaint which was filed against him under section 23 of the Foreign Exchange Regulation Act.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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The result therefore is that the appeal fails and must be dismissed. Petitions Nos. 170, 171 and 172 of 1961. (1) (1922) L.L.R. 46 Bom. By an order of this Court dated the 26th November, 1952 these petitions were ordered to be heard by the Constitution Beach along with Criminal Appeal No.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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81 of 1952, as the same point as regards "autrefois convict" or "double jeopardy" was also ' involved therein. Jagjit Singh, Vidya Rattan and Parma Nand, the three petitioners in the respective petitions were detenus under the, detained in the Central Jail, Ferozepur, and governed by the Punjab Communist Detenus Rules, 1950, framed by the Government of Punjab under section 4(a) of the Act. On the 6th February, 1950, it is alleged, a general assault on jail officials was made by the detenus including Jagjit Singh. An alarm was rung and the warder guard after some time overpowered the detenus who were responsible for the assault. Thirteen jail officials and twelve detenus sustained injuries and the detenus were all removed to cells. On the 7th February, 1950, the three detenus petitioners resorted to a hunger strike which continued upto the 10th April, 1950.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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They were separately confined from and after the 6th February, 1950. Their letters and interviews were stopped for two months with effect from the 7th February, 1950, and papers and books were stopped with effect from the 8th February, 1950, for the duration of the hunger strike. The hunger strike continued and they continued to be separately confined till the 10th April, 1960. It appears that more than 7 1/2 months after the hunger strike the Jail Superintendent, Shri K. K. Matta, filed a complaint against Jagjit Singh in the Court of Shri P. L. Sondhi, M.T.C.,Ferozepur, under rule 41(2) of the Punjab Communist Detenus Rules charging him with having committed a jail offence in resorting to hunger strike. He also filed a complaint before the same Magistrate against Jagjit Singh for having committed offences under sections 332 and 353 and sections 147 and 149 of the Indian Penal Code. He further filed against Vidya Rattan and Parma Nand complaints under rule 41 (2) of the Punjab Communist Detenus Rules for having committed 745 a jail offence in resorting to hunger strike.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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On the 16th February, 1951, the three detenu petitioners,, filed before this Court petitions under article 32 of the Constitution asking for the issue of a writ of prohibition not to proceed with the prosecutions of the petitioners in the said cases on the ground that they had been prosecuted and punished for the same offence already by the Jail Superintendent and therefore they could not be prosecuted and punished for the same offence once again and that the prosecutions which were launched against them in the, Court of Shri P. L. Sondhi, M.I.C., Ferozepur, could not lie as being in contravention of the fundamental right guaranteed under article 20(2) of the Constitution. Jagjit Singh argued his own petition in person. Vidya Rattan had intimated to this Court that he would be satisfied with the decision on Jagjit Singh 's petition and wanted his absence to be excused. Parma Nand did not appear at the hearing even though notice of the hearing was served upon him. It was urged by Jagjit Singh that the proceedings which were adopted by the Jail Superintendent against the petitioners amounted to their prosecution and punishment for the same offence and that therefore the prosecution which was now launched against them was not competent as it exposed them to double jeopardy and violated the fundamental right guaranteed to them under article 20(2). It was on the other hand urged by the Advocate General of Punjab that the Jail Superintendent merely took disciplinary action against the petitioners and the punishment if any which was meted out to them was for breaches of discipline within the meaning of section 4(a) of the Act and the Punjab Communist Detenus Rules, 1950, framed thereunder, that there was no prosecution and punishment of the petitioners within the meaning of article 20(2) and that therefore the petitions were liable to be dismissed.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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Section 4 of the (Act No. IV of 1960), provides for power to regulate place and conditions of detention, 746 "Every person in respect of whom a detention order has been made shall be liable (a) to be detained in such place and under such conditions, including conditions as to maintenance, discipline and punishment for breaches of discipline, as the appropriate Government may, by general or special order, specify The Punjab Communist Detenus Rules, 1950, were framed by the Government of Punjab in exercise of the powers conferred by section 4 (a) of the Act. Rules 39, 40 and 41 provide for offences and punishments. Rule 39 lays down certain rules of discipline and rule 40 provides that any detenu who contravenes any of the provisions of rule 39 or refuses to obey any order issued thereunder, or does any of the acts mentioned in the following portion of the rule 40, viz. : (i) assaults, insults, threatens or obstructs any fellow prisoner, any officer of the jail or any other Government servant, or any person employed in or visiting the jail, or.. (xii a) goes on hunger strike (other than a token strike), or. shall be deemed to have committed a jail off once.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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Rule 41 is important and bears particularly on the question which we have to decide. It provides:" (1) Where upon such enquiry as he thinks fit to make, the Superintendent is satisfied that a detenu is guilty of a jail offence, he may award the detenu one or more of the following punishments: (a) confinement in cells for a period not exceeding 14 days (d) cancellation or reduction, for a period not exceeding two months of the privilege of writing and receiving letters or of receiving newspapers an books, (e) cancellation or reduction, for a period not exceeding two months of the privilege of having interviews 747 (2) If any detenu is guilty of a jail offence which by reason of his having frequently committed such A offences or otherwise is in the opinion of the Superintendent not adequately punishable by him under the provisions of sub rule (1), he may forward such detenu to the Court of a Magistrate of the first class having jurisdiction, and such Magistrate shall thereupon inquire into and try the charge so brought against the detenu and upon conviction shall sentence him to imprisonment for a term not exceeding one year: Provided that where the act constituting the offence ' constitutes an offence punishable under the Indian Penal Code with imprisonment for a term exceeding one year, nothing in this rule shall preclude the detenu from being tried and sentenced for such offence in accordance with the provisions of the Indian Penal Code. " It is clear from the above rules that the Jail Super intendent is constituted the authority for determining whether a detenu is guilty of a jail offence and for the award to such a detenu of one or more of the punishments prescribed in rule 41. If this punishment is considered to be adequate the Jail Superintendent is to award him the appropriate punishment. No procedure is prescribed by the rules and the Superintendent is not required to act only on evidence given on oath. He can punish after such enquiry as he thinks fit to make.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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Thus he may not take any evidence or make any judicial enquiry at all but may yet punish. If however the detenu cannot in the opinion of the Jail Superintendent be adequately punished by him by reason of his having frequently committed such offence or otherwise the Jail Superintendent is empowered to forward such a detenu to the Court of a Magistrate of the First Class having jurisdiction and the jail offence in that case can be enquired into by the Magistrate who would try the charge brought against the detenu, convict him and sentence him to imprisonment for a term not exceeding one year. The proviso covers the cases where the offence is Punishable with imprisonment for a term exceeding 97 748 one year under the Indian Penal Code and nothing in rule 41 is to preclude the detenu from being tried and sentenced for such offence in accordance with the provisions of the Indian Penal Code. The whole scheme of rule 41 is to constitute the Jail superintendent only an administrative authority to maintain jail discipline and inflict summary punishment on the detenus for breach of that discipline by committing a jail offence. It is only when the Jail Superintendent considers that the offence is not adequately punishable by him that he, can send the case to the Magis trate. If he actually himself punishes he cannot, under this rule, refer the case again to the Magistrate.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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A reference by him after punishment it will be wholly unauthorised and without jurisdiction and the prosecution before the Magistrate would be illegal and not in accordance with procedure established by law. It was contended that under sections 45, 46 and 52 of the Prisons Act (IX of 1894) the Jail Superintendent was constituted an authority bound to act judicially for the purposes of enquiry into and trial of the prisoners for similar offences and the detenus under the Punjab Communist Detenus Rules, 1950, being put in the same category as civil prisoners the proceedings before the Jail Superintendent for having committed the Jail offences under rules 40 and 41 above amounted to a prosecution of the petitioners before him as a judicial tribunal. It was on the other hand contended by the Advocate General of Punjab that the Punjab Communist Detenus Rules, 1950, constituted a self contained code regulating the place and conditions of detention of these detenus, that the aforesaid sections of the, had. no application to their case and the proceedings which took place before the Jail Superintendent in the present case were therefore not judicial proceedings and there was no prosecution and punishment of the petitioners within the meaning of article 20 (2). We accept the contention of the AdvocateGeneral of Punjab. The petitioners were communist detenus and were governed by the Punjab Communist 749 Detenus Rules, 1950, which were framed by the Government of Punjab under section 4(a) of the set out above and which constituted the body of rules prescribing the conditions of their maintenance, discipline, etc.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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Their confinement in the prisons was for the sake of administrative convenience and was also prescribed by the rules themselves and the provisions of the did not apply to them. It could not therefore be validly contended that the proceedings taken against the petitioners by the Jail Superintendent constituted a prosecution and punishment of the petitioners before a judicial tribunal. So far as the jail offence alleged to have been committed by reason of the petitioners having resorted to hunger strike was concerned, the Jail Superintendent obviously considered that he could adequately punish the petitioners for that jail offence and he did not think it necessary to have resort to the provisions of rule 41 (2) and forward the petitioners to the Court of the Magistrate without having himself dealt with them. It is common ground that the Jail Superintendent acted under rule 41 (1), and having satisfied himself that the petitioners were guilty of that jail offence awarded them one or more of the punishments therein prescribed, viz., stopping the letters and interviews for two months with effect from the 7th February, 1950, and stopping the papers and books for the duration of the hunger strike. In our opinion this was tantamount to inflicting punishment on all the three petitioners for this jail offence and that having been done it was not competent to the Jail Superintendent after 7 1/2 months of the hunger strike to forward the petitioners to the Court of the Magistrate as be purported to do, and such reference was wholly unauthorised by the rule and without jurisdiction and the prosecution before ' the Magistrate is obviously not in accordance with procedure established by law and the petitioners may well complain of a breach or a threatened breach of the fundamental right guaranteed to them by article 21 of the Constitution in that the prosecution of the 750 petitioners before the Magistrate for the jail offence of having resorted to the hunger strike was not competent according to the procedure established by law. The Petitions Nos.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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171 of 1951 and 172 of 1951 filed by Vidya Rattan and Parma Nand must ' therefore be accepted and their prosecution in the Court of Shri P. L. Soudhi, M.I.C., Ferozepur, under rule 41(2) of the Punjab Communist Detenus Rules, 1950, for having committed a jail offence in resorting to hunger strike must be quashed. The same order will also be passed in the petition of Jagjit Singh, being Petition No. 170 of 1951, in regard to the jail offence committed by him by having resorted to the hunger strike. Jagjit Singh however is being prosecuted in the Court of the Magistrate for having committed offences under sections 332 and 353 as also sections 147 and 149 of the Indian Penal Code. It was contended by the Advocate General of Punjab that there was no prosecution and no punishment awarded to Jagjit Singh in regard to there offences; and he relied upon the entries in the punishment register under the date 6th February, 1950, with reference to these offences. These entries in the punishment register show that Jagjit Singh was not punished for any of these offences but he was to be sent up for trial and in the meantime he was to be separately confined.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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Jagjit Singh on the other hand relied in particular on the evidence of Sher Singh who was the Assistant Superintendent of the Central Jail, Ferozepur, at all material times and his evidence would have helped Jagjit Singh considerably had it not been for the fact that the entries in the punishment register completely belie his version and he further states that Jagjit Singh was punished not only for the offence of assault but also rioting which could in no event have been done by the Jail Superintendent under the rules. So far as the prosecution under sections 147 and 149 of the Indian Penal Code is concerned that is an 751 offence which is not comprised in the jail offences enumerated in rule 40 nor could it have been dealt with by the Jail Superintendent under rule 41 (1). That offence was moreover covered by the proviso to rule 41(2) and was exclusively triable by the Magistrate. The prosecution of Jagjit Singh therefore before the Magistrate for the offences under sections 332 and 353 and sections 147 and 149 of the Indian Penal Code is not in violation of article 20 (2) or article 21 of the Constitution and must therefore proceed. The result therefore is that the Petition No. 170 of 1961 filed by Jagjit Singh will be allowed only to the extent that the appropriate writ of prohibition shall issue against the respondent in regard to his prosecution for having committed a jail offence in resorting to hunger strike, but his prosecution under sections 332 and 353 and sections 147 and 149 of the Indian Penal Code will not be affected by this order.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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The Petitions Nos. 171 of 1951 and 172 of 1951 filed by Vidya Rattan and Parma Nand respectively will be accepted and the appropriate writs of prohibition shall issue against the respondent as prayed for therein. Appeal No. 81 dismissed. Petitions Nos. 171 and 172 allowed.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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Petition No. 170 partly allowed. Agent for the appellant in Criminal Appeal No. 81: P. K. Chatterjee. Agent for the respondent in Criminal Appeal No. 81 and Petitions Nos.
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The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred. The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent. Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc. it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.
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What is the summary of this judgment?
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Appeal No. 286 of 1961. Appeal from the judgment and order dated January 27, 1960, of the Kerala High Court in I. T. R. Case No. 14 of 1955. K.N. Rajagopal Sastri and D. Gupta, for the Appellant.
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The respondent company was incorporated in 1937 primarily with the object of acquiring and working a match factory. Under the memorandum of association the company was also empowered, inter alia, to manufacture and deal in chemicals. The business of manufacturing matches was carried on by the company till 1941. Thereafter the profits became less and less due to war conditions. On May 9, 1943, the company entered into an agreement with a third party for the sale of the lands, buildings, plant and machinery of its match factory for Rs. 5,75,000. It was agreed that this price would not include manufactured goods, chemicals and other jaw materials or any other asset not shown in the agreement of sale. Later, a fresh agreement was entered into on August 9, 1943, under which the sale included chemicals and paper for manufacture which had not been sold in the first instance and the price was Rs. 7,35,000. In a report to the shareholders dated August 1, 1944, the Directors stated that the price obtained had shown a capital appreciation of about six times the cost price and that the sale of chemicals had resulted in ' substantial profit. In proceedings for assessing income which had escaped assessment the income tax authorities, relying upon the memorandum of association which allowed the 961 company to manufacture and sell chemicals and on the Directors ' report, held that the profit from the sale of the chemicals and other raw materials was liable to income tax on a profit of Rs. 2,00,000 which was reduced later to Rs. 1, 15,259. The company claimed that the stock of raw materials was sold not in the course of ordinary trading but only in a realisation sale after the company had been wound up. The evidence showed that the clause in the memorandum of association giving power to the company to sell chemicals was seldom used and that prior to the sale of chemicals to the purchaser, two transactions of sale of chemicals for small amounts in 1943 were too petty in themselves to afford evidence of trading in chemicals. Held, that though under the second agreement dated August 9, 1943, more price was paid, the transaction was still a winding up sale and no part of this slump price was identifiable as the price of the chemicals and other raw materials. There was no evidence that before the winding up the company had sold chemicals as part of its business, and the two instances cited were too petty in themselves to afford evidence of a continued or sustained trading in chemicals. A winding up sale is not "trading or doing business" and the sale of the raw materials including the chemicals was not part of any business done. Accordingly, the sum of Rs. 1,15,259 was not liable to tax. Doughty v Commissioner of Taxes, (1927) A. C. 327, di. ',Cussed and relied on. Case law reviewed.
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What is the summary of this judgment?
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S.P. Desai J. B. Dadachan, O. C. Mathur and Ravinder Narain, for the respondent. March 20. The Judgment of the Court was delivered by HIDAYATULLAH, J. In this appeal by the Commissioner of Income Tax Kerala filed with 962 certificate of the High Court of Kerala, an important question of law was raised before the High Court, which was answered against the Department.
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The respondent company was incorporated in 1937 primarily with the object of acquiring and working a match factory. Under the memorandum of association the company was also empowered, inter alia, to manufacture and deal in chemicals. The business of manufacturing matches was carried on by the company till 1941. Thereafter the profits became less and less due to war conditions. On May 9, 1943, the company entered into an agreement with a third party for the sale of the lands, buildings, plant and machinery of its match factory for Rs. 5,75,000. It was agreed that this price would not include manufactured goods, chemicals and other jaw materials or any other asset not shown in the agreement of sale. Later, a fresh agreement was entered into on August 9, 1943, under which the sale included chemicals and paper for manufacture which had not been sold in the first instance and the price was Rs. 7,35,000. In a report to the shareholders dated August 1, 1944, the Directors stated that the price obtained had shown a capital appreciation of about six times the cost price and that the sale of chemicals had resulted in ' substantial profit. In proceedings for assessing income which had escaped assessment the income tax authorities, relying upon the memorandum of association which allowed the 961 company to manufacture and sell chemicals and on the Directors ' report, held that the profit from the sale of the chemicals and other raw materials was liable to income tax on a profit of Rs. 2,00,000 which was reduced later to Rs. 1, 15,259. The company claimed that the stock of raw materials was sold not in the course of ordinary trading but only in a realisation sale after the company had been wound up. The evidence showed that the clause in the memorandum of association giving power to the company to sell chemicals was seldom used and that prior to the sale of chemicals to the purchaser, two transactions of sale of chemicals for small amounts in 1943 were too petty in themselves to afford evidence of trading in chemicals. Held, that though under the second agreement dated August 9, 1943, more price was paid, the transaction was still a winding up sale and no part of this slump price was identifiable as the price of the chemicals and other raw materials. There was no evidence that before the winding up the company had sold chemicals as part of its business, and the two instances cited were too petty in themselves to afford evidence of a continued or sustained trading in chemicals. A winding up sale is not "trading or doing business" and the sale of the raw materials including the chemicals was not part of any business done. Accordingly, the sum of Rs. 1,15,259 was not liable to tax. Doughty v Commissioner of Taxes, (1927) A. C. 327, di. ',Cussed and relied on. Case law reviewed.
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What is the summary of this judgment?
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It arose in the following,circumstances. The respondent, the West Coast Chemicals and Industries, Ltd. (referred to as the assessee Company) was incorporated in 1937 primarily with the object of acquiring and working the rights, title and interest in a match factory belonging to one A. V. Thomas at Medical. The Memorandum of Association of the asseesee Company, however, empowered the Company to manufacture and deal in acids, alkalis and other chemicals. The assessee 'Company carried on its business of manufacturing matches till the account year ending, on April 30, 1941. Thereafter, the profits from the business became less and less due to War conditions, and the assessee Company began to manufacture plywood chests for tea, paints and lemon grass oil. These were contemplated by cl.
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The respondent company was incorporated in 1937 primarily with the object of acquiring and working a match factory. Under the memorandum of association the company was also empowered, inter alia, to manufacture and deal in chemicals. The business of manufacturing matches was carried on by the company till 1941. Thereafter the profits became less and less due to war conditions. On May 9, 1943, the company entered into an agreement with a third party for the sale of the lands, buildings, plant and machinery of its match factory for Rs. 5,75,000. It was agreed that this price would not include manufactured goods, chemicals and other jaw materials or any other asset not shown in the agreement of sale. Later, a fresh agreement was entered into on August 9, 1943, under which the sale included chemicals and paper for manufacture which had not been sold in the first instance and the price was Rs. 7,35,000. In a report to the shareholders dated August 1, 1944, the Directors stated that the price obtained had shown a capital appreciation of about six times the cost price and that the sale of chemicals had resulted in ' substantial profit. In proceedings for assessing income which had escaped assessment the income tax authorities, relying upon the memorandum of association which allowed the 961 company to manufacture and sell chemicals and on the Directors ' report, held that the profit from the sale of the chemicals and other raw materials was liable to income tax on a profit of Rs. 2,00,000 which was reduced later to Rs. 1, 15,259. The company claimed that the stock of raw materials was sold not in the course of ordinary trading but only in a realisation sale after the company had been wound up. The evidence showed that the clause in the memorandum of association giving power to the company to sell chemicals was seldom used and that prior to the sale of chemicals to the purchaser, two transactions of sale of chemicals for small amounts in 1943 were too petty in themselves to afford evidence of trading in chemicals. Held, that though under the second agreement dated August 9, 1943, more price was paid, the transaction was still a winding up sale and no part of this slump price was identifiable as the price of the chemicals and other raw materials. There was no evidence that before the winding up the company had sold chemicals as part of its business, and the two instances cited were too petty in themselves to afford evidence of a continued or sustained trading in chemicals. A winding up sale is not "trading or doing business" and the sale of the raw materials including the chemicals was not part of any business done. Accordingly, the sum of Rs. 1,15,259 was not liable to tax. Doughty v Commissioner of Taxes, (1927) A. C. 327, di. ',Cussed and relied on. Case law reviewed.
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What is the summary of this judgment?
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(3) of the ' Memorandum of Association. On May, 9, 1943, the assessee Company entered into an agreement with one Rao Sahib Natesa Iyer for the sale of the lands, buildings, plant and machinery of its match factory for Rs. 5, 75,000. It was agreed that the price would not include manufactured goods, chemicals and other raw materials or any other asset not shown in the agreement of sale. The purchaser was allowed sixty days for the payment of the balance of the price, Rs. 57,500 having been already paid at the time the agreement was 'entered into.
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The respondent company was incorporated in 1937 primarily with the object of acquiring and working a match factory. Under the memorandum of association the company was also empowered, inter alia, to manufacture and deal in chemicals. The business of manufacturing matches was carried on by the company till 1941. Thereafter the profits became less and less due to war conditions. On May 9, 1943, the company entered into an agreement with a third party for the sale of the lands, buildings, plant and machinery of its match factory for Rs. 5,75,000. It was agreed that this price would not include manufactured goods, chemicals and other jaw materials or any other asset not shown in the agreement of sale. Later, a fresh agreement was entered into on August 9, 1943, under which the sale included chemicals and paper for manufacture which had not been sold in the first instance and the price was Rs. 7,35,000. In a report to the shareholders dated August 1, 1944, the Directors stated that the price obtained had shown a capital appreciation of about six times the cost price and that the sale of chemicals had resulted in ' substantial profit. In proceedings for assessing income which had escaped assessment the income tax authorities, relying upon the memorandum of association which allowed the 961 company to manufacture and sell chemicals and on the Directors ' report, held that the profit from the sale of the chemicals and other raw materials was liable to income tax on a profit of Rs. 2,00,000 which was reduced later to Rs. 1, 15,259. The company claimed that the stock of raw materials was sold not in the course of ordinary trading but only in a realisation sale after the company had been wound up. The evidence showed that the clause in the memorandum of association giving power to the company to sell chemicals was seldom used and that prior to the sale of chemicals to the purchaser, two transactions of sale of chemicals for small amounts in 1943 were too petty in themselves to afford evidence of trading in chemicals. Held, that though under the second agreement dated August 9, 1943, more price was paid, the transaction was still a winding up sale and no part of this slump price was identifiable as the price of the chemicals and other raw materials. There was no evidence that before the winding up the company had sold chemicals as part of its business, and the two instances cited were too petty in themselves to afford evidence of a continued or sustained trading in chemicals. A winding up sale is not "trading or doing business" and the sale of the raw materials including the chemicals was not part of any business done. Accordingly, the sum of Rs. 1,15,259 was not liable to tax. Doughty v Commissioner of Taxes, (1927) A. C. 327, di. ',Cussed and relied on. Case law reviewed.
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What is the summary of this judgment?
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The purchaser made a default in payment, and on August 9, 1943, a fresh agreement was entered.into by the parties, this time for a consideration of Rs. 7,35,000, and the sale included chemicals and paper for manufacture which had not been sold in the first instance. In a confidential report made on August 1, 1944, to the shareholders, the 963 Directors stated that the price obtained had shown a capital appreciation of about six times the cost price, and the sale of chemicals had also resulted in a substantial profit. Meanwhile, the assessment of the Company for the, account year ending April 30, 1944, bad been completed by the Deputy Commissioner of Income tax, and the assessee Company had been assessed on an income of Rs. 36,498 6 4. The Deputy Commissioner of Income tax then issued a notice under section 25 of the Travancore Income tax Act to the Company 's Liquidator on the ground that the profits from the sale of the chemicals and paper for manufacture had escaped assessment.
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The respondent company was incorporated in 1937 primarily with the object of acquiring and working a match factory. Under the memorandum of association the company was also empowered, inter alia, to manufacture and deal in chemicals. The business of manufacturing matches was carried on by the company till 1941. Thereafter the profits became less and less due to war conditions. On May 9, 1943, the company entered into an agreement with a third party for the sale of the lands, buildings, plant and machinery of its match factory for Rs. 5,75,000. It was agreed that this price would not include manufactured goods, chemicals and other jaw materials or any other asset not shown in the agreement of sale. Later, a fresh agreement was entered into on August 9, 1943, under which the sale included chemicals and paper for manufacture which had not been sold in the first instance and the price was Rs. 7,35,000. In a report to the shareholders dated August 1, 1944, the Directors stated that the price obtained had shown a capital appreciation of about six times the cost price and that the sale of chemicals had resulted in ' substantial profit. In proceedings for assessing income which had escaped assessment the income tax authorities, relying upon the memorandum of association which allowed the 961 company to manufacture and sell chemicals and on the Directors ' report, held that the profit from the sale of the chemicals and other raw materials was liable to income tax on a profit of Rs. 2,00,000 which was reduced later to Rs. 1, 15,259. The company claimed that the stock of raw materials was sold not in the course of ordinary trading but only in a realisation sale after the company had been wound up. The evidence showed that the clause in the memorandum of association giving power to the company to sell chemicals was seldom used and that prior to the sale of chemicals to the purchaser, two transactions of sale of chemicals for small amounts in 1943 were too petty in themselves to afford evidence of trading in chemicals. Held, that though under the second agreement dated August 9, 1943, more price was paid, the transaction was still a winding up sale and no part of this slump price was identifiable as the price of the chemicals and other raw materials. There was no evidence that before the winding up the company had sold chemicals as part of its business, and the two instances cited were too petty in themselves to afford evidence of a continued or sustained trading in chemicals. A winding up sale is not "trading or doing business" and the sale of the raw materials including the chemicals was not part of any business done. Accordingly, the sum of Rs. 1,15,259 was not liable to tax. Doughty v Commissioner of Taxes, (1927) A. C. 327, di. ',Cussed and relied on. Case law reviewed.
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What is the summary of this judgment?
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The Official Liquidator took up the position that the match manufacturing had been stopped, and that business had been wound up, and there thus only an appreciation of the capital assets and not a business profit, which, was liable to assessment. The Deputy Commissioner, however, relying, upon the Memorandum of Association, which allowed the assessee Company to manufacture and sell chemicals, and on the Directors report, held that the assessee Company was liable to income tax on a profit of Rs. 2 lakhs arising from this sale. The Commissioner of Income tax on appeal, however, reduced the assessable profits to Rs. 1,15,259. Before the Commissioner, the Liquidator admitted that the profit from the sale of the chemicals wits Rs.
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The respondent company was incorporated in 1937 primarily with the object of acquiring and working a match factory. Under the memorandum of association the company was also empowered, inter alia, to manufacture and deal in chemicals. The business of manufacturing matches was carried on by the company till 1941. Thereafter the profits became less and less due to war conditions. On May 9, 1943, the company entered into an agreement with a third party for the sale of the lands, buildings, plant and machinery of its match factory for Rs. 5,75,000. It was agreed that this price would not include manufactured goods, chemicals and other jaw materials or any other asset not shown in the agreement of sale. Later, a fresh agreement was entered into on August 9, 1943, under which the sale included chemicals and paper for manufacture which had not been sold in the first instance and the price was Rs. 7,35,000. In a report to the shareholders dated August 1, 1944, the Directors stated that the price obtained had shown a capital appreciation of about six times the cost price and that the sale of chemicals had resulted in ' substantial profit. In proceedings for assessing income which had escaped assessment the income tax authorities, relying upon the memorandum of association which allowed the 961 company to manufacture and sell chemicals and on the Directors ' report, held that the profit from the sale of the chemicals and other raw materials was liable to income tax on a profit of Rs. 2,00,000 which was reduced later to Rs. 1, 15,259. The company claimed that the stock of raw materials was sold not in the course of ordinary trading but only in a realisation sale after the company had been wound up. The evidence showed that the clause in the memorandum of association giving power to the company to sell chemicals was seldom used and that prior to the sale of chemicals to the purchaser, two transactions of sale of chemicals for small amounts in 1943 were too petty in themselves to afford evidence of trading in chemicals. Held, that though under the second agreement dated August 9, 1943, more price was paid, the transaction was still a winding up sale and no part of this slump price was identifiable as the price of the chemicals and other raw materials. There was no evidence that before the winding up the company had sold chemicals as part of its business, and the two instances cited were too petty in themselves to afford evidence of a continued or sustained trading in chemicals. A winding up sale is not "trading or doing business" and the sale of the raw materials including the chemicals was not part of any business done. Accordingly, the sum of Rs. 1,15,259 was not liable to tax. Doughty v Commissioner of Taxes, (1927) A. C. 327, di. ',Cussed and relied on. Case law reviewed.
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What is the summary of this judgment?
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1, 15,259. An appeal was then filed before the Income tax Appellate Tribunal at Trivandrum, and the assessee Company contented that a stock in trade could only be that which was the subject of trade, and that the stock of raw material was not sold in the course of ordinary trading but in a reali sation sale after the Company had been wound up. The Tribunal found that the business had not 964 completely ceased to exist, since the assessee Company was carrying on manufacturing, on behalf of the purchaser, and, the sale could not be regarded as a realisation sale after the Company was wound up, but had the characteristics of a trading sale. At the request of the assessee Company, however, the Tribunal referred two questions to the High Court for its decision, and they were: "(1) whether the transaction of sale of the raw materials along with the business,including machinery, plant and premises is a revenue sale, and whether in the facts and circumstances of the case, the sum of Rs. 1,15,254has been rightly charged to income tax; and (2) whether the decision that the sale of match, machinery and premises, was distinct from the sale of chemicals is legally war ranted and whether there was legally a single, transaction of the entire match factory inclusive of raw materials?" It maybe pointed out that prior to the sale of chemicals to the purchaser, the only evidence of sale of chemicals by the assessee Company was of two transactions.
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The respondent company was incorporated in 1937 primarily with the object of acquiring and working a match factory. Under the memorandum of association the company was also empowered, inter alia, to manufacture and deal in chemicals. The business of manufacturing matches was carried on by the company till 1941. Thereafter the profits became less and less due to war conditions. On May 9, 1943, the company entered into an agreement with a third party for the sale of the lands, buildings, plant and machinery of its match factory for Rs. 5,75,000. It was agreed that this price would not include manufactured goods, chemicals and other jaw materials or any other asset not shown in the agreement of sale. Later, a fresh agreement was entered into on August 9, 1943, under which the sale included chemicals and paper for manufacture which had not been sold in the first instance and the price was Rs. 7,35,000. In a report to the shareholders dated August 1, 1944, the Directors stated that the price obtained had shown a capital appreciation of about six times the cost price and that the sale of chemicals had resulted in ' substantial profit. In proceedings for assessing income which had escaped assessment the income tax authorities, relying upon the memorandum of association which allowed the 961 company to manufacture and sell chemicals and on the Directors ' report, held that the profit from the sale of the chemicals and other raw materials was liable to income tax on a profit of Rs. 2,00,000 which was reduced later to Rs. 1, 15,259. The company claimed that the stock of raw materials was sold not in the course of ordinary trading but only in a realisation sale after the company had been wound up. The evidence showed that the clause in the memorandum of association giving power to the company to sell chemicals was seldom used and that prior to the sale of chemicals to the purchaser, two transactions of sale of chemicals for small amounts in 1943 were too petty in themselves to afford evidence of trading in chemicals. Held, that though under the second agreement dated August 9, 1943, more price was paid, the transaction was still a winding up sale and no part of this slump price was identifiable as the price of the chemicals and other raw materials. There was no evidence that before the winding up the company had sold chemicals as part of its business, and the two instances cited were too petty in themselves to afford evidence of a continued or sustained trading in chemicals. A winding up sale is not "trading or doing business" and the sale of the raw materials including the chemicals was not part of any business done. Accordingly, the sum of Rs. 1,15,259 was not liable to tax. Doughty v Commissioner of Taxes, (1927) A. C. 327, di. ',Cussed and relied on. Case law reviewed.
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What is the summary of this judgment?
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In the first transaction, there was a sale of chemicals on July 24, 1943,to an educational institution for Rs. 50 and another sale on October 30, 1943, to a stranger for Rs. 7 12 0. The High Court held that by the sale no business was done, and that the amount obtained was only by way of realisation sale and was not, therefore, liable to tax. 'rho argument of the Department (also raised before the High Court) proceeds in this way. The Department refers to the Memorandum of Association under which the assessee Company was to carry on the business of manufacturing and 965 selling chemicals, that in the past it bad sold chemicals, that in the first sale of its assets it had excluded chemicals and some other raw materials necessary for the manufacture of matches and had sold the concern for a lesser price, that later it included chemicals and raw materials and obtained a larger price, and that admittedly 'there was an identifiable profit of Rs.
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The respondent company was incorporated in 1937 primarily with the object of acquiring and working a match factory. Under the memorandum of association the company was also empowered, inter alia, to manufacture and deal in chemicals. The business of manufacturing matches was carried on by the company till 1941. Thereafter the profits became less and less due to war conditions. On May 9, 1943, the company entered into an agreement with a third party for the sale of the lands, buildings, plant and machinery of its match factory for Rs. 5,75,000. It was agreed that this price would not include manufactured goods, chemicals and other jaw materials or any other asset not shown in the agreement of sale. Later, a fresh agreement was entered into on August 9, 1943, under which the sale included chemicals and paper for manufacture which had not been sold in the first instance and the price was Rs. 7,35,000. In a report to the shareholders dated August 1, 1944, the Directors stated that the price obtained had shown a capital appreciation of about six times the cost price and that the sale of chemicals had resulted in ' substantial profit. In proceedings for assessing income which had escaped assessment the income tax authorities, relying upon the memorandum of association which allowed the 961 company to manufacture and sell chemicals and on the Directors ' report, held that the profit from the sale of the chemicals and other raw materials was liable to income tax on a profit of Rs. 2,00,000 which was reduced later to Rs. 1, 15,259. The company claimed that the stock of raw materials was sold not in the course of ordinary trading but only in a realisation sale after the company had been wound up. The evidence showed that the clause in the memorandum of association giving power to the company to sell chemicals was seldom used and that prior to the sale of chemicals to the purchaser, two transactions of sale of chemicals for small amounts in 1943 were too petty in themselves to afford evidence of trading in chemicals. Held, that though under the second agreement dated August 9, 1943, more price was paid, the transaction was still a winding up sale and no part of this slump price was identifiable as the price of the chemicals and other raw materials. There was no evidence that before the winding up the company had sold chemicals as part of its business, and the two instances cited were too petty in themselves to afford evidence of a continued or sustained trading in chemicals. A winding up sale is not "trading or doing business" and the sale of the raw materials including the chemicals was not part of any business done. Accordingly, the sum of Rs. 1,15,259 was not liable to tax. Doughty v Commissioner of Taxes, (1927) A. C. 327, di. ',Cussed and relied on. Case law reviewed.
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What is the summary of this judgment?
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1,15,259 on the sale of the chemicals and raw materials. The Department, therefore, contends that the amount of Rs. 1, 15,259 was properly brought to tax as a trading profit. The question, therefore, is whether there can be said to be a sale in the carrying on of the business in respect of the chemicals and other raw materials. This question is not one easy to decide,specially with the assistance of rulings, in which the facts were different. There is a great danger of extracting a principle from the reported cases, divorced from the facts.
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The respondent company was incorporated in 1937 primarily with the object of acquiring and working a match factory. Under the memorandum of association the company was also empowered, inter alia, to manufacture and deal in chemicals. The business of manufacturing matches was carried on by the company till 1941. Thereafter the profits became less and less due to war conditions. On May 9, 1943, the company entered into an agreement with a third party for the sale of the lands, buildings, plant and machinery of its match factory for Rs. 5,75,000. It was agreed that this price would not include manufactured goods, chemicals and other jaw materials or any other asset not shown in the agreement of sale. Later, a fresh agreement was entered into on August 9, 1943, under which the sale included chemicals and paper for manufacture which had not been sold in the first instance and the price was Rs. 7,35,000. In a report to the shareholders dated August 1, 1944, the Directors stated that the price obtained had shown a capital appreciation of about six times the cost price and that the sale of chemicals had resulted in ' substantial profit. In proceedings for assessing income which had escaped assessment the income tax authorities, relying upon the memorandum of association which allowed the 961 company to manufacture and sell chemicals and on the Directors ' report, held that the profit from the sale of the chemicals and other raw materials was liable to income tax on a profit of Rs. 2,00,000 which was reduced later to Rs. 1, 15,259. The company claimed that the stock of raw materials was sold not in the course of ordinary trading but only in a realisation sale after the company had been wound up. The evidence showed that the clause in the memorandum of association giving power to the company to sell chemicals was seldom used and that prior to the sale of chemicals to the purchaser, two transactions of sale of chemicals for small amounts in 1943 were too petty in themselves to afford evidence of trading in chemicals. Held, that though under the second agreement dated August 9, 1943, more price was paid, the transaction was still a winding up sale and no part of this slump price was identifiable as the price of the chemicals and other raw materials. There was no evidence that before the winding up the company had sold chemicals as part of its business, and the two instances cited were too petty in themselves to afford evidence of a continued or sustained trading in chemicals. A winding up sale is not "trading or doing business" and the sale of the raw materials including the chemicals was not part of any business done. Accordingly, the sum of Rs. 1,15,259 was not liable to tax. Doughty v Commissioner of Taxes, (1927) A. C. 327, di. ',Cussed and relied on. Case law reviewed.
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What is the summary of this judgment?
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In Halsbury 's; Laws of England, 3rd Edn., Vol. 20, pp. 115 117, there is a list in the footnotes of the cases which have been decided on one side or the other of the dividing line. In the text, the law, as summarised from the cases, is stated as follows : "210. Mere realisation of assets is not trading; but the completion of outstanding contracts after the dissolution of a firm, the commencement of liquidation of a company, or the winding up of the affairs of a trader, has been held to be trading.. 211. The cases illustrating the question arising in such circumstances can be divided into two categories, first, those where the sales formed part of trading activities, and, second, those where the realisation was not an act of trading".
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The respondent company was incorporated in 1937 primarily with the object of acquiring and working a match factory. Under the memorandum of association the company was also empowered, inter alia, to manufacture and deal in chemicals. The business of manufacturing matches was carried on by the company till 1941. Thereafter the profits became less and less due to war conditions. On May 9, 1943, the company entered into an agreement with a third party for the sale of the lands, buildings, plant and machinery of its match factory for Rs. 5,75,000. It was agreed that this price would not include manufactured goods, chemicals and other jaw materials or any other asset not shown in the agreement of sale. Later, a fresh agreement was entered into on August 9, 1943, under which the sale included chemicals and paper for manufacture which had not been sold in the first instance and the price was Rs. 7,35,000. In a report to the shareholders dated August 1, 1944, the Directors stated that the price obtained had shown a capital appreciation of about six times the cost price and that the sale of chemicals had resulted in ' substantial profit. In proceedings for assessing income which had escaped assessment the income tax authorities, relying upon the memorandum of association which allowed the 961 company to manufacture and sell chemicals and on the Directors ' report, held that the profit from the sale of the chemicals and other raw materials was liable to income tax on a profit of Rs. 2,00,000 which was reduced later to Rs. 1, 15,259. The company claimed that the stock of raw materials was sold not in the course of ordinary trading but only in a realisation sale after the company had been wound up. The evidence showed that the clause in the memorandum of association giving power to the company to sell chemicals was seldom used and that prior to the sale of chemicals to the purchaser, two transactions of sale of chemicals for small amounts in 1943 were too petty in themselves to afford evidence of trading in chemicals. Held, that though under the second agreement dated August 9, 1943, more price was paid, the transaction was still a winding up sale and no part of this slump price was identifiable as the price of the chemicals and other raw materials. There was no evidence that before the winding up the company had sold chemicals as part of its business, and the two instances cited were too petty in themselves to afford evidence of a continued or sustained trading in chemicals. A winding up sale is not "trading or doing business" and the sale of the raw materials including the chemicals was not part of any business done. Accordingly, the sum of Rs. 1,15,259 was not liable to tax. Doughty v Commissioner of Taxes, (1927) A. C. 327, di. ',Cussed and relied on. Case law reviewed.
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What is the summary of this judgment?
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This distinction, in our opinion, is a sound one. The only difficulty is in deciding whether a particular 966 case belongs to one category or the other. In this, much support cannot be derived from observations made by learned Judges pertaining to the facts of a case, but they do guide one in a true appraisement of the case in hand. In the well known case of Californian Copper Syndicate vs Harris (1), the difference between the purchase price and the value of the shares for which the property was exchanged was considered as profit assessable to income tax. There, the company was formed for the purpose of acquiring and reselling mining properties, and though what it had acquired had all been Bold or exchanged, the transaction was considered a business transaction failing within the avowed objects, of the Company. The case has been accepted as decided on these narrow facts, in Tebrau (Johore) Rubber Syndicate Ltd. vs Farmer (2), in which a different conclusion was reached on slightly different facts.
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The respondent company was incorporated in 1937 primarily with the object of acquiring and working a match factory. Under the memorandum of association the company was also empowered, inter alia, to manufacture and deal in chemicals. The business of manufacturing matches was carried on by the company till 1941. Thereafter the profits became less and less due to war conditions. On May 9, 1943, the company entered into an agreement with a third party for the sale of the lands, buildings, plant and machinery of its match factory for Rs. 5,75,000. It was agreed that this price would not include manufactured goods, chemicals and other jaw materials or any other asset not shown in the agreement of sale. Later, a fresh agreement was entered into on August 9, 1943, under which the sale included chemicals and paper for manufacture which had not been sold in the first instance and the price was Rs. 7,35,000. In a report to the shareholders dated August 1, 1944, the Directors stated that the price obtained had shown a capital appreciation of about six times the cost price and that the sale of chemicals had resulted in ' substantial profit. In proceedings for assessing income which had escaped assessment the income tax authorities, relying upon the memorandum of association which allowed the 961 company to manufacture and sell chemicals and on the Directors ' report, held that the profit from the sale of the chemicals and other raw materials was liable to income tax on a profit of Rs. 2,00,000 which was reduced later to Rs. 1, 15,259. The company claimed that the stock of raw materials was sold not in the course of ordinary trading but only in a realisation sale after the company had been wound up. The evidence showed that the clause in the memorandum of association giving power to the company to sell chemicals was seldom used and that prior to the sale of chemicals to the purchaser, two transactions of sale of chemicals for small amounts in 1943 were too petty in themselves to afford evidence of trading in chemicals. Held, that though under the second agreement dated August 9, 1943, more price was paid, the transaction was still a winding up sale and no part of this slump price was identifiable as the price of the chemicals and other raw materials. There was no evidence that before the winding up the company had sold chemicals as part of its business, and the two instances cited were too petty in themselves to afford evidence of a continued or sustained trading in chemicals. A winding up sale is not "trading or doing business" and the sale of the raw materials including the chemicals was not part of any business done. Accordingly, the sum of Rs. 1,15,259 was not liable to tax. Doughty v Commissioner of Taxes, (1927) A. C. 327, di. ',Cussed and relied on. Case law reviewed.
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What is the summary of this judgment?
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There also, the Company was formed with the object of acquiring rubber estates and for developing them. Under the Memo randum, the Company had the power to sell its properties. Two properties having been acquired and the funds having run out, they were sold but at a profit. This profit was considered as an appreciation of capital and not as assessable profit. The difference between these two oases is that whereas in the former, though the whole of the property was sold, it was sold at; a part of trading, in the letter, the property was sold not as part of trading but on a winding up sale. The Department relies upon Californian Copper Syndicate vs Harris (1),while the assesse Company relies upon Tebrau (Johore)Rubber Syndicate Ltd. vs Farmer (2).
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The respondent company was incorporated in 1937 primarily with the object of acquiring and working a match factory. Under the memorandum of association the company was also empowered, inter alia, to manufacture and deal in chemicals. The business of manufacturing matches was carried on by the company till 1941. Thereafter the profits became less and less due to war conditions. On May 9, 1943, the company entered into an agreement with a third party for the sale of the lands, buildings, plant and machinery of its match factory for Rs. 5,75,000. It was agreed that this price would not include manufactured goods, chemicals and other jaw materials or any other asset not shown in the agreement of sale. Later, a fresh agreement was entered into on August 9, 1943, under which the sale included chemicals and paper for manufacture which had not been sold in the first instance and the price was Rs. 7,35,000. In a report to the shareholders dated August 1, 1944, the Directors stated that the price obtained had shown a capital appreciation of about six times the cost price and that the sale of chemicals had resulted in ' substantial profit. In proceedings for assessing income which had escaped assessment the income tax authorities, relying upon the memorandum of association which allowed the 961 company to manufacture and sell chemicals and on the Directors ' report, held that the profit from the sale of the chemicals and other raw materials was liable to income tax on a profit of Rs. 2,00,000 which was reduced later to Rs. 1, 15,259. The company claimed that the stock of raw materials was sold not in the course of ordinary trading but only in a realisation sale after the company had been wound up. The evidence showed that the clause in the memorandum of association giving power to the company to sell chemicals was seldom used and that prior to the sale of chemicals to the purchaser, two transactions of sale of chemicals for small amounts in 1943 were too petty in themselves to afford evidence of trading in chemicals. Held, that though under the second agreement dated August 9, 1943, more price was paid, the transaction was still a winding up sale and no part of this slump price was identifiable as the price of the chemicals and other raw materials. There was no evidence that before the winding up the company had sold chemicals as part of its business, and the two instances cited were too petty in themselves to afford evidence of a continued or sustained trading in chemicals. A winding up sale is not "trading or doing business" and the sale of the raw materials including the chemicals was not part of any business done. Accordingly, the sum of Rs. 1,15,259 was not liable to tax. Doughty v Commissioner of Taxes, (1927) A. C. 327, di. ',Cussed and relied on. Case law reviewed.
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