Input:
minal Appeals Nos.
95 to 97 and 106 of 1954.
1151 Appeal by Special Leave from the Judgment and Order dated the 24th August 1953 of the High Court of Judicature for the State of Punjab (Circuit Bench, Delhi) in Criminal Revision Nos.
109 D, 122 D and 123 D of 1953 arising out of the Judgment and Order dated the 25th May 1953 of the Court of Special Judge,Delhi, in Corruption Case No. 14 of 1954; from the Judgment and Order dated the 27th August 1954 of the High Court of Judicature for the State of Punjab (Circuit Bench, Delhi) in Criminal Miscellaneous No. 131 D of 1954.
H. J. Umrigar and Rajinder Narain, for appellant No. 1.
C. K. Daphtary, Solicitor General of India (G. N. Joshi, P. A. Mehta and P. G. Gokhale, with him), for the respondent.
December 14.
The Judgment of the Court was delivered by JAGANNADHADAS J.
These are appeals by special leave against the orders of the Punjab High Court made in exercise of revisional jurisdiction, reversing the orders of the Special Judge, Delhi, quashing certain criminal proceedings pending before himself against these appellants for alleged offences under the Penal Code and the Prevention of Corruption Act, 1947.
The Special Judge quashed the proceedings on the ground that the investigations on the basis of which the appellants were being prosecuted were in contravention of the provisions of sub section (4) of section 5 of the Prevention of Corruption Act, 1947, and hence illegal.
In Appeal No. 95 of 1954 the appellants are two persons by name H.N. Risbud and Indar Singh.
In Appeals No. 96 and 97 of 1954 H.N. Risbud above mentioned is the sole appellant.
These appeals raise a common question of law and are dealt with together.
The appellant Risbud was the Assistant Development Officer (Steel) in the office of the Directorate General, Ministry of Industry and Supply, Government of India and the appellant Indar Singh was the Assistant Project Section Officer (Steel) in the office of the Direc 1152 torate General, Ministry of Industry and Supply, Government of India.
There appear to be a number of prosecutions pending against them before the Special Judge, Delhi, appointed under the Criminal Law Amendment Act., 1952 (Act XLVI of 1952).
We are concerned in these appeals with Cases Nos.
12,13 and 14 of 1953.
Appeals Nos. 95, 96 and 97 arise respectively out of them.
The cases against these appellants are that they along with some others entered into criminal conspiracies to obtain for themselves or for others iron and steel materials in the name of certain bogus firms and that they actually obtained quota certificates, on the strength of which some of the members of the conspiracy took delivery of quantities of iron and steel from the stock holders of these articles.
The charges, therefore, under which the various accused, including the appellants, are being prosecuted are under section 120 B of the Indian Penal Code, section 420 of the Indian Penal Code and section 7 of the Essential Supplies (Temporary Powers) Act, 1946.
In respect of such of these accused as are public servants, there are also charges under section 5(2) of the Prevention of Corruption Act, 1947.
Under section 5(4) of the Prevention of Corruption Act, 1947, a police officer below the rank of a Deputy Superintendent of Police shall not investigate any offence punishable under sub section (2) of section 5 without the order of a Magistrate of the First Class.
The first information reports in these cases were laid in April and June, 1949, but permission of the Magistrate, for investigation as against the public servants concerned, by a police officer of a rank lower than a Deputy Superintendent of Police, was given in March and April, 1951.
The charge sheets in all these cases were filed by such officers in August and November, 1951, i.e. subsequent to.
the date on which permission as above was given.
But admittedly the investigation was entirely or mostly completed in between the dates when the first information was laid and the permission to investigate by an officer of a lower rank was accorded.
It appears from the evidence taken in this behalf that such investigation was con 1153 ducted not by any Deputy Superintendent of Police but by officers of lower rank and that after the permission was accorded little or no further investigation was made.
The question, therefore, that has been raised is, that the proceedings by way of trial initiated on such charge sheets are illegal and require to be quashed.
To appreciate the argument it is necessary to notice the relevant sections of the Prevention of Corruption Act, 1947 (Act II of 1947) (hereinafter referred to as the Act.
Section 3 of the Act provides that offences punishable under section 161 or 165 of the Indian Penal Code shall be deemed to be cognizable offences.
Section 4 enacts a special rule of evidence against persons accused of offences under section 161 or 165 of the Indian Penal Code, throwing the burden of proof on the accused.
Broadly stated, this section provides that if it is proved against an accused that lie has accepted or obtained gratification other than legal remuneration, it shall be presumed against him that this was so accepted or obtained as a motive or reward.
, such as is mentioned in section 161 of the Indian Penal Code.
Sub sections (1) and (2) of section 5 create a new offence of "criminal misconduct in discharge of official duty" by a public servant punishable with imprisonment for a term of seven years or fine or both.
Sub section (3) thereof enacts a new rule of evidence as against a person accused of the commission of offences under section 5(1) and (2).
That rule, broadly stated,.
is that when a person so accused, or any other person on his behalf, is in possession of pecuniary resources or property disproportionate to the known sources of his income and for which he cannot satisfactorily account, the Court shall presume him to be guilty of criminal misconduct unless he can displace that presumption by evidence.
The offence of criminal misconduct which has been created by the Act, it will be seen, is in itself a cognizable offence, having regard to item 2 of the last portion of Schedule 11 of the Code of Criminal Procedure under the bead "offences against the other laws".
In the normal course, therefore, an investi 1154 gation into the offence of criminal misconduct under section 5(2) of the Act and an investigation into the offence under sections 161 and 165 of the Indian Penal Code which have been made cognizable by section 3 of the Act would have to be made by an officer incharge of a police station and no order of any Magistrate in this behalf would be required.
But the proviso to section 3 as well as sub section (4) of section 5 of the Act specifically provide that "a police officer below the rank of a Deputy Superintendent of Police shall not investigate any such offence without the order of a Magistrate of the First Class or make any arrest there for without a warrant".
It may be mentioned that this Act was amended by Act LIX of 1952.
The above mentioned proviso to section 3 as well as sub section (4) of section 5 have been thereby omitted and substituted by section 5 A, the relevant portion of which may be taken to be as follows: "Notwithstanding anything contained in the Code of Criminal Procedure, no police officer below the rank of a Deputy Superintendent of Police (elsewhere than in the presidency towns of Calcutta, Madras and Bombay) shall investigate any offence punishable under sections 161, 165 or 165 A of the Indian Penal Code or under section 5(2) of this Act without the order of a Magistrate of the First Class".
This amendment makes no difference.
In any case the investigation in these cases having taken place prior to the amendment, what is relevant is section 5(4) as it stood before the amendment.
It may also be mentioned that in 1952 there was enacted the Criminal Law Amendment Act, 1952 (Act XLVI of 1952) which provided for the appointment of Special Judges to try offences under sections 161, 165 and 165 A of the Indian Penal Code and under sub section (2) of section 5 of the Act such offences were made triable only by such Special Judges.
Provision was also made that all pending cases relating to such offences shall be forwarded for trial to the Special Judge.
That is how the present cases are all now before the Special Judge of Delhi appointed under this Act.
On the arguments urged before us two points arise 1155 for consideration.
(1) Is the provision of the Prevention of Corruption Act, 1947, enacting that the investigation into the offences specified therein shall not be ' conducted by any police officer of a rank lower than a Deputy Superintendent of Police without the specific order of a Magistrate, directory or mandatory.
(2) Is the trial following upon an investigation in contravention of this provision illegal.
To determine the first question it is necessary to consider carefully both the language and scope of the section and the policy underlying it.
As has been pointed out by Lord Campbell in Liverpool Borough Bank vs Turner(1), "there is no universal rule to aid in determining whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience.
It is the duty of the Court to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed".
(See Craies on Statute Law, page 242, Fifth Edition).
The Code of Criminal Procedure provides not merely for judicial enquiry into or trial of alleged offences but also for prior investigation thereof.
Section 5 of the Code shows that all offences "shall be investigated, inquired into, tried and otherwise dealt with in accordance with the Code" (except in so far as any special enactment may provide otherwise).
For the purposes of investigation offences are divided into two categories 'cognizable ' and 'non cognizable '.
When information of the commission of a cognizable offence is received or such commission is suspected, the appropriate police officer has the authority to enter on the investigation of the same (unless it appears to him that there is no sufficient ground).
But where the information relates to a non cognizable offence, he shall not investigate it without the order of a competent Magistrate.
Thus it may be seen that according to the scheme of the Code, investigation is a normal preliminary to an accused being put up for trial for a cognizable offence (except when the Magistrate takes cognizance other (1) 148 1156 wise than on a police report in which case he has the power under section 202 of the Code to order investigation if he thinks fit).
Therefore, it is clear that when the Legislature made the offences in the Act cognizable, prior investigation by the appropriate police officer was contemplated as the normal preliminary to the trial in respect of such offences under the Act.
In order to ascertain the scope of and the reason for requiring such investigation to be conducted by an officer of high rank (except when otherwise permitted by a Magistrate), it is useful to consider what "investigation" under the Code comprises.
Investigation usually starts on information relating to the commission of an offence given to an officer in charge of a police station and recorded under section 154 of the Code.
If from information so received or otherwise, the officer in charge of the police station has reason to suspect the commission of an offence, he or some other subordinate officer deputed by him, has to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender.
Thus investigation primarily consists in the ascertainment of the facts and circumstances of the case.
By definition, it includes "all the proceedings under the Code for the collection of evidence conducted by a police officer".
For the above purposes, the investigating officer is given the power to require before himself the attendance of any person appearing to be acquainted with the circumstances of the case.
He has also the authority to examine such person orally either by himself or by a duly authorised deputy.
The officer examining any person in the course of investigation may reduce his statement into writing and such writing is available, in the trial that may follow, for use in the manner provided in this behalf in section 162.
Under section 155 the officer in charge of a police station has the power of making a search in any place for the seizure of anything believed to be necessary for the purpose of the investigation.
The search has to be conducted by such officer in person.
A subordinate officer may be deputed by him for the 1157 purpose only for reasons to be recorded in writing if he is unable to conduct the search in person and there is no other competent officer available.
The investigating officer has also the power to arrest the person or persons suspected of the commission of the offence under section 54 of the Code.
A police officer making an investigation is enjoined to enter his proceedings in a diary from day to day.
Where such investigation cannot be completed within the period of 24 hours and the accused is in custody he is enjoined also to send a copy of the entries in the diary to the Magistrate concerned.
It is important to notice that where the investigation is conducted not by the officer in charge of the police station but by a subordinate officer (by virtue of one or other of the provisions enabling him to depute such subordinate officer for any of the steps in the investigation) such subordinate officer is to report the result of the investigation to the officer in charge of the police station.
If, upon the completion of the investigation it appears to the officer in charge of the police station that there is no sufficient evidence or reasonable ground, he may decide to release the suspected accused, if in custody, on his executing a bond.
If, however, it appears to him that there is sufficient evidence or reasonable ground, to place the accused on trial, he is to take the necessary steps therefore under section 170 of the Code.
In either case, on the completion of the in vestigation he has to submit a report to the Magistrate under section 173 of the Code in the prescribed form furnishing various details.
Thus, under the Code investigation consists generally of the following steps:(1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opi 1158 nion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge sheet under section 173.
The scheme of the Code also shows that while it is permissible for an officer in charge of a police station to depute some subordinate officer to conduct some of these steps in the investigation, the responsibility for every one of these steps is that of the person in the situation of the officer in charge of the police station, it having been clearly provided in section 168 that when a subordinate officer makes an investigation he should report the result to the officer in charge of the police station.
It is also clear that the final step in the investigation, viz. the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in charge of the police station.
There is no provision permitting delegation thereof but only a provision entitling superior officers to supervise or participate under section 551.
It is in the light of this scheme of the Code that the scope of a provision like section 5(4) of the Act has to be judged.
When such a statutory provision enjoins that the investigation shall be made by a police officer of not less than a certain rank, unless specifically empowered by a Magistrate in that behalf, notwithstanding anything to the contrary in the Code of Criminal Procedure, it is clearly implicit therein that the investigation (in the absence of such permission) should be conducted by the officer of the appropriate rank.
This is not to say that every one of the steps in the investigation has to be done by him in person or that he cannot take the assistance of deputies to the extent permitted by the Code to an officer in charge of a police station conducting an investigation or that he is bound to go through each of these steps in every case.
When the Legislature has enacted in emphatic terms such a provision it is clear that it had a definite policy behind it.
To appreciate that policy it is relevant to observe that under the Code of Criminal Procedure most of the offences relating to public 1159 servants as such, are non cognizable.
A cursory perusal of Schedule II of the Code of Criminal Procedure discloses that almost all the offences which may be alleged to have been committed by a public servant, fall within two chapters, Chapter IX "Offences by, or relating to, public servants", and Chapter XI "Offences against public justice" and that each one of them is non cognizable.
(Vide entries in Schedule II under sections 161 to 169, 217 to 233, 225 A as also 128 and 129).
The underlying policy in making these offences by public servants non cognizable appears to be that public servants who have to discharge their functions often enough in difficult circumstancesshould not be exposed to the harassment of investigation against them on information levelled, possibly, by persons affected by their official acts, unless a Magistrate is satisfied that an investigation is called for, and on such satisfaction authorises the same.
This is meant to ensure the diligent discharge of their official functions by public servants, without fear or favour.
When, therefore, the Legislature thought fit to remove the protection from the public servants, in so far as it relates to the investigation of the offences of corruption comprised in the Act, by making them cognizance, it may be presumed that it was considered necessary to provide a substituted safeguard from undue harassment by requiring that the investigation is to be conducted normally by a police officer of a designated high rank.
Having regard therefore to the peremptory language of sub section (4) of section 5 of the Act as well as to the policy apparently underlying it is reasonably clear that the said provision must be taken to be mandatory.
It has been suggested by the learned SolicitorGeneral in his arguments that the consideration as to the policy would indicate, if at all, only the necessity for the charge sheets in such a case having to be filed by the authorised officer, after coming to his own conclusion as to whether or not there is a case to place the accused on trial before the Court, on a. perusal of the material previously collected, and that at best this might extend also to the requirement of arrest of the 1160 concerned public servant by an officer of the appropriate rank.
There is, however, no reason to think that the policy comprehends within its scope only some and not all the steps involved in the process of investigation which, according to the scheme of the Act, have to be conducted by the appropriate investigating officer either directly or when permissible through deputies, but on his responsibility.
It is to be borne in mind that the Act creates two new rules of evidence one under section 4 and the other under section 5(3), of an exceptional nature and contrary to the accepted canons of criminal jurisprudence.
It may be of considerable importance to the accused that the evidence in this behalf is collected under the responsibility of the authorised and competent investigating officer or is at least such for which such officer is prepared to take responsibility.
It is true that the result of a trial in Court depends on the actual evidence in the case but it cannot be posited that the higher rank and the consequent greater responsibility and experience of a police officer has absolutely no relation to the nature and quality of evidence collected during investigation and to be subsequently given in Court.
A number of decisions of the various High Courts have been cited before us bearing on the questions under consideration.
We have also perused the recent unreported Full Bench judgment of the Punjab High Court(1).
These disclose a conflict of opinion.
It is sufficient to notice one argument based on section 156(2) of the Code on which reliance has been placed in some of these decisions in support of the view that section 5(4) of the Act is directory and not mandatory.
Section 156 of the Code of Criminal Procedure is in the following terms: "156(1).
Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XV relating to the place of inquiry or trial.
(1) Criminal Appeals Nos.
25 D and 434 of 1953 disposed of on 3rd May,1954.
1161 (2).
No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
Any Magistrate empowered under section 190 may order such an investigation as above mentioned".
The argument advanced is that section 5(4) and proviso to section 3 of the Act are in substance and in effect in the nature of an amendment of or proviso to section 156(1) of the Code of Criminal Procedure.
In this view, it was suggested that section 156(2) which cures the irregularity of an investigation by a person not empowered is attracted to section 5(4) and proviso to section 3 of the 1947 Act and section 5 A of the 1952 Act.
With respect, the learned Judges appear to have overlooked the phrase "under this sec tion" which is to be found in sub section (2) of section 156 of the Code of Criminal Procedure.
What that sub section cures is investigation by an officer not empowered under that section, i.e. with reference to sub sections (1) and (3) thereof.
Sub section (1) of section 156 is a provision empowering an officer in charge of a police station to investigate a cognizable case without the order of a Magistrate and delimiting his power to the investigation of such cases within a certain local jurisdiction.
It is the violation of this provision that is cured under sub section (2).
Obviously sub section (2) of section 156 cannot cure the violation of any other specific statutory provision prohibiting investigation by an officer of a lower rank than a Deputy Superintendent of Police unless specifically authorised.
But apart from the implication of the language of section 156(2), it is not permissible to read the emphatic negative language of sub section (4) of section 5 of the Act or of the proviso to section 3 of the Act, as being merely in the nature of an amendment of or a proviso to sub section (1) of section 156 of the Code of Criminal Procedure.
Some of the learned Judges of the High Courts have called in aid sub section (2) of section 561 of the Code of Criminal Procedure by way of analogy.
It 1162 is difficult to see how this analogy helps unless the said sub section is also to be assumed as directory and not mandatory which certainly is not obvious on the wording thereof We are, therefore, clear in our opinion that section 5(4) and proviso to section 3 of the Act and the corresponding section 5 A of Act LIX of 1952 are mandatory and not directory and that the investigation conducted in violation thereof bears the stamp of illegality.
The question then requires to be considered whether and to what extent the trial which follows such investigation is.
vitiated.
Now, trial follows cognizance and cognizance is preceded by investigation.
This is undoubtedly the basic scheme of the Code in respect of cognizable cases.
But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon.
Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial.
It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises.
A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial.
No doubt a police report which results from an investigation is provided in section 190 of the Code of Criminal Procedure as the material on which cognizance is taken.
But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance.
Section 190 of the Code of Criminal Procedure is one out of a group of sections under the beading "Conditions requisite for initiation of proceedings.
The language of this section is in marked contrast with that of the other sections of the group under the same heading, i.e. sections 193 and 195 to 199.
These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith.
But section 190 does not.
While no doubt, in one sense, clauses (a), (b) and (c) of section 190(1) are conditions requisite for taking of cogni 1163 zance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity.
Such an invalid report may still fall either under clause (a) or (b) of section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial.
To such a situation section 537 of the Code of Criminal Procedure which is in the following terms is attracted: "Subject to the provisions herein before contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned a failure of justice".
If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice.
That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in Prabhu vs Emperor(1) and Lumbhardar Zutshi vs The King(2).
These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence.
This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court.
We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termi (1) A.I.R. 1944 P.C. 73.
149 (2) A.I.R. 1950 P C. 26, 1164 nation.
, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby.
It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial.
When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for.
Such a course is not altogether outside the contemplation of the scheme of the Code as appears from section 202 under which a Magistrate taking cognizance on a complaint can order investigation by the police.
Nor can it be said that the adoption of such a course is outside the scope of the inherent powers of the Special Judge, who for purposes of procedure at the trial is virtually in the position of a Magistrate trying a warrant case.
When the attention of the Court is called to such an illegality at a very early stage it would not be fair to the accused not to obviate the prejudice that may have been caused thereby, by appropriate orders, at that stage but to leave him to the ultimate remedy of waiting till the conclusion of the trial and of discharging the somewhat difficult burden under section 537 of the Code of Criminal Procedure of making out that such an error has in fact occasioned a failure of justice.
It is relevant in this context to observe that even if the trial had proceeded to conclusion and the accused had to make out that there was in fact a failure of justice as the result of such an error, explanation to section 537 of the Code of Criminal Procedure indicates that the fact of the objection having been raised at an early stage of the proceeding is a pertinent factor.
To ignore the breach in such a situation when brought to the notice of the Court would be virtually to make a dead letter of the peremptory provision which has been enacted on grounds of public policy for the benefit of such an accused.
It is true that the peremptory pro 1165 vision itself allows an officer of a lower rank to make the investigation if permitted by the Magistrate.
But this is not any indication by the Legislature that an investigation by an officer of a lower rank without such permission cannot be said to cause prejudice.
When a Magistrate is approached for granting such permission he is expected to satisfy himself that there are good and sufficient reasons for authorising an officer of a lower rank to conduct the investigation.
The granting of such permission is not to be treated by a Magistrate as a mere matter of routine but it is an exercise of his judicial discretion having regard to the policy underlying it.
In our opinion, therefore, when such a breach is brought to the notice of the Court at an early stage of the trial the Court have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of section 5 A of the Act.
It is in the light of the above considerations that the validity or otherwise of the objection as to the viola tion of section 5(4) of the Act has to be decided and the course to be adopted in these proceedings, determined.
The learned Special Judge before whom the objection as to the violation of section 5(4) of the Act was taken took evidence as to the actual course of the investigation in these cases.
In the cases out of which Criminal Appeals Nos. 96 and 97 of 1954 arise, the first information report which in each case was filed on 29 6 1949 was in terms on the basis of a complaint filed by the Director of Administration and Co ordination,, Directorate of Industry and Supply.
This disclosed information constituting offences including that under section 5(2) of the Act.
The cases were hence registered under various sections including section 5(2), of the Act.
The investigation that was called for on the basis of such a first information report was to be by an officer contemplated under section 5(4) of the Act.
The charge sheets in these two cases were filed on 11 8 1951 by a Sub Inspector 1166 of Police, R. G. Gulabani and it appears that he applied to the Magistrate for permission to investigate into these cases on 26 3 1951.
His evidence shows that so far as the case relating to Criminal Appeal No. 97 of 1954 is concerned, he did not make any investigation at all excepting to put up the chargesheet.
All the prior stages of the investigation were conducted by a number of other officers of the rank of Inspector of Police or Sub Inspector of Police and none of them had taken the requisite permission of the Magistrate.
In the case out of which Criminal Appeal No. 96 of 1954 arises the evidence of R. G. Gulabani shows that he took up the investigation after he obtained permission and partly investigated it thereafter but that the major part of the investigation was done by a number of other officers who were all below the rank of Deputy Superintendent of Police without having obtained from the Magistrate the requisite sanction therefor.
Both these are cases of clear violation of the mandatory provisions of section 5(4) of the Act.
In the view we have taken of the effect of such violation it becomes necessary for the Special Judge to reconsider the course to be adopted in these two cases.
As regards the case out of which Criminal Appeal No. 95 of 1954 arises it is to be noticed that the first information report which was filed on 30 4 1949 disclosed offences only against Messrs Patiala Oil Mills, Dev Nagar, Delhi, and others, and not as against any public servant.
The case that was registered was accordingly in respect of offences punishable under section 420 of the Indian Penal Code and section 6 of the Essential Supplies (Temporary) Powers Act, 1946, and not under any offence comprised within the Pre Vention of Corruption Act.
The investigation proceeded, therefore, in the normal course.
The evidence shows that the investigation in this case was started on 2 5 1949 by Inspector Harbans Singh and that on 11 7 1949 he handed over the investigation to Inspector Balbir Singh.
Since then it was only Balbir Singh that made all the investigation and it appears from his evidence that he examined as many 1167 as 25 witnesses in the case.
It appears further that in the course of this investigation it was found that, the two appellants and another public servant were liable to be prosecuted under section 5(2) of the Act.
Application was then made to the Magistrate by Balbir Singh for sanction being accorded to him under section 5(4) of the Act and the same was given on 20 3 1951.
The charge sheet was filed by Balbir Singh on 15 11 1951.
He admits that all the investi gation by him excepting the filing of charge sheet was prior to the obtaining the sanction of the Magistrate for investigation.
But since the investigation prior to the sanction was with reference to a case registered under section 420 of the Indian Penal Code and section 6 of the Essential Supplies (Temporary) Powers Act, 1946, that was perfectly valid.
It is only when the material so collected disclosed the commission of an offence under section 5(2) of the Act by public servants, that any question of taking the sanction of the Magistrate for the investigation arose.
In such a situation the continuance of such portion of the investigation as remained, as against the public servants concerned by the same officer after obtaining the permission of the Magistrate was reasonable and legitimate.
We are, therefore, of the opinion that there has been no such defect in the investigation in this case as to call for interference.
In the result, therefore, Criminal Appeal No. 95 of 1954 is dismissed.
Criminal Appeals Nos.96 and 97 of 1954 are allowed with the direction that the Special Judge will take back the two cases out of which these appeals arose on to his file and pass appropriate orders after reconsideration in the light of this judgment.
Criminal Appeal No. 106 of 1954.
This is an appeal by special leave against a common order of the High Court of Punjab relating to Cases Nos. 19 to 25 of 1953 before the Special Judge, Delhi.
It raises the same questions which have been disposed of by our judgment in Criminal Appeals Nos. 95 to 97 of 1954.
Since the appeal is, in form, one 1168 against the order of the High Court refusing to grant stay of the proceedings then pending, it is sufficient to dismiss this appeal with the observation that it will be open to the appellants to raise , the objections before the Special Judge.

Output:
Held, that section 5(4) and proviso to section 3 of the Prevention of Corruption Act, 1947 (II of 1947) and the corresponding section 5 A of the Prevention of Corruption (Second Amendment) Act, 1952 (LIX of 1952) are mandatory and not directory and that an investigation conducted in violation thereof is illegal.
If cognizance is in fact taken on a police report in breach of a mandatory provision relating to investigation, the results which follow cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice.
It is well settled that an illegality committed in the course of an investigation does not affect the competence and the jurisdiction of the court for trial and where cognizance of the case has in fact been taken and the case has proceeded to termination the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby When any breach of the mandatory provisions relating to investigation is brought to the notice of the Court at an early stage of the trial the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of section 5 A of the Prevention of Corruption (Second Amendment) Act, 1952.
Liverpool Borough Bank vs Turner ([1861] ; , Prabhu vs Emperor (A.I.R. and Lumbhardar Zutshi vs The King (A.I.R. , referred to.


Input:
: Criminal Appeal No. 163 of 1967.
Appeal by special leave from the judgment and order dated March 6, 1967 of the Madhya Pradesh High Court in Criminal Revision No. 159 of 1966.
G.L. Sanghi and P.C. Bhartari, for the appellants.
I. N. Shroff, for the respondent.
The Judgment of the Court was delivered by Sikri, J.
This appeal by special leave arises out of the following facts.
Inspector Ahuja inspected the Municipal Council, Raipur, under the Motor Transport Workers Act, 1961 hereinafter referred to as the Act and found that 50 transport workers, including drivers, conductors, mechanics, etc., had been employed by the Council but the Council had not been registered as required under section 3(1) of the Act.
He filed a complaint before the Special Magistrate and Presiding Officer, Labour Court, who issued summons to the accused, namely, the Municipal Council and the Chief Municipal Officer, Municipal Council, Raipur.
The accused appeared by counsel and filed preliminary objections.
Be fore the Magistrate two.
points were taken: (1) that the Municipal Council was not a 'motor transport undertaking ' within section 2(g) of the Act, and (2) that the Council was exempt under section 38 of the Act insofar as it uses the vehicles for transporting sick or injured persons.
and for maintenance of public order, i.e., for transporting night soil and refuse of the town free of charges.
The Magistrate accepted these contentions and dismissed the complaint and discharged the accused persons.
The State of Madhya Pradesh filed a revision before the Sessions Judge, Raipur, who agreeing with the findings of the Magistrate, dismissed the revision.
The State then filed a revision under section 439, Cr.
P.C. Three points were debated before the High Court: (1) whether a revision lay under section 439, Cr.
The contention was that the accused had been acquitted and not discharged and, therefore, only a.n appeal under section 417.
P.C., lay; (2) that the Municipal Council does not fall within the definition of the expression "motor transport undertaking" in section 2(g); and (3) that the transport vehicles owned by the Municipal Council are exempt under section 38(1) of the Act.
917 The High Court overruled the preliminary objection and held that a revision lay under section 439, Cr. P.C., because the order passed by the Magistrate was an order of discharge and not of acquittal.
On the second point the High Court held that the Municipal Council fell within the definition of the expression "motor transport undertaking".
On tire third point the High Court held that the vehicles of the Municipal Council did not come within the exemption under section 38 of the Act.
The same points have been debated before us by the learned counsel.
Coming to the first point, we agree with the High Court that the order of the Magistrate was an order of discharge and not of acquittal.
It is true that it is a summons case and no formal charge is necessary to be framed under section 242, Cr.
P.C., but even so.
here when the accused appeared, before anything was done the accused filed a preliminary objection and no particulars of the offence of which the accused was charged were even stated to him.
Coming to the second point, it seems to us that the High Court was right in holding that the.
Municipal Council is a motor transport undertaking as defined in the Act.
It is necessary to set out the relevant definition in section 2 of the Act.
"2(g) 'motor transport undertaking ' means a motor transport undertaking engaged in carrying passengers or goods or both by.
road for hire or reward, and includes a private carrier; (n) all other words and expressions used but not defined in this Act and defined in the , shall have the meanings respectively assigned to them in that Act.
" The expression "private carrier" is defined in the , to mean "an owner of a transport vehicle other than a public carrier who uses that vehicle solely for the carriage of goods which are his property or the carriage of which is necessary for the purposes of his business not being a business of providing transport, of who.
uses the vehicle for any of the purposes specified in sub section (2) of section 42.
" A "transport vehicle" is defined in the , to mean "a public service vehicle or a goods vehicle," and a ":goods vehicle" is defined to mean "any motor vehicle constructed or adapted for use for the carriage of goods, or any motor vehicle not so.
constructed or adapted when used for the carriage of goods solely or in addition to passengers." "Goods" is defined as follows: "Goods" includes live stock, and anything (other than equipment ordinarily used with the vehicle) car 918 ried by a vehicle except living persons, but does not include luggage or personal effects carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle.
" It seems to us that the accused fell within the definition of a "private cartier" inasmuch as the Council owned transport vehicles and used these vehicles solely for the carriage of goods which are its property.
In this case we are not concerned with the second limb of the definition, and the authority cited by the learned counsel for the 'accused (Mohamed Zarful Islam vs Birendra Lall(1) which dealt with the second limb, is of no assistance to.
The main argument which the learned counsel urges is that the word "includes" in the definition of the expression "motor transport undertaking" helps him because this shows that it is only an undertaking of a commercial nature which was intended to be included within the definition of "motor transport undertaking".
He says that a Municipal Council is not carrying on any business but is carrying on statutory obligations imposed upon it and, therefore, a Municipal Council cannot be called an undertaking.
We are unable to accept this contention.
First, the Act provides for the welfare of motor transport workers and regulates the conditions of their work.
Such beneficial acts are not, as a rule, construed strictly.
Secondly, the words of the definition are plain and not susceptible of any reasonable limitation.
It seems to us that by using the word "includes" the.
Legislature undoubtedly intended to enlarge the meaning of the expression "motor transport undertaking".
The words "private carrier" have been given a specific meaning in the , and it is difficult to limit this specific meaning on any reasonable basis.
Further, section 38 of the Act, which exempts certain transport vehicles, also proceeds on the basis that a private carrier who is carrying on activities which are not commercial would be included within the expression "motor transport undertaking".
Relying on the decision of the House of Lords in Dilworth vs The Commissioner of Stamps(2) and the decision of the Madhya Pradesh High Court in State of Madhya Pradesh vs Mother Superior Convent School(3), the learned counsel contends that sometimes the legislature uses the word "includes" to mean "means and includes".
This is undoubtedly so but we are unable to appreciate how this would help the appellants.
(1) A.I.R. 1965 Bom.
(2) [1899] A.C. 99.
(3) A.I.R. 1958 M.P, 362.
919 The learned counsel also suggests that we should limit the meaning of the words "private carrier" in the same manner as the Madhya Pradesh High Court limited the meaning of the word "church" occurring in section 2(4) of the Madhya Pradesh Public Trust Act.
We are unable to see any analogy between the two definitions.
The definition there is quite different and the High Court was of the view that the scheme of the Act itself shows that what was intended was to regulate, not religious institutions but religious institutions impressed with the character of a public trust.
" Coming to the last point, we agree with the High Court that the words "public order" in section 38(1)(ii) do not include the maintenance of public health.
Section 38 reads: "38.
Exemptions. (1) Nothing contained in this Act shall apply to or in relation to any transport vehicle (i) used for the transport of sick or injured persons; (ii) used for any purpose connected with the security of India, or the.
security of a State, or the maintenance of public order . ".
The learned counsel relies on the decision of this Court Ramesh Thappar vs The State of Madras (1).
In Ratnesh Thappar 's case the question before this Court was.
"whether the impugned Act (Madras Maintenance of Public Order Act, 1949) in so far as it purports by section 9(1 a) to authorise the Provincial Government 'for the: purpose of securing the public safety or the maintenance of public order, to prohibit or regulate tie entry into or the circulation, sale or distribution in the Province of Madras or any part thereof of any document or class of documents ' is a law relating to any matter which undermines the security of or tends to overthrow the State.
" Patanjali Sastri, J., as he then was, observed: "Now 'Public Order ' is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of internal regulations enforced by the government which they have established.
" Later he observed: " 'Public safety ' ordinarily means security of the public or their freedom from danger.
In that sense, anything which tends to prevent danger to public health may also be regarded as securing public safety." (1) ; 920 The learned counsel urges that "public order" includes "public safety" and the latter comprises "public health".
We see no force in this contention and Ramesh Thappar 's case(1) does not say so.
In our view "Public Order" in this context means public peace and tranquillity.
We agree with the High Court that the functions of the Municipal Council in carrying night soil and in distributing water do not fail within "maintenance of public order.
" In the result the appeal fails and is dismissed.
V.P.S. Appeal dismissed.

Output:
The appellant (Municipal Council) owned transport vehicles and used those vehicles for the maintenance of public health in the Municipality by transporting the night soil and refuse of the town, and by distributing water.
It employed 50 transport workers.
As it had not been registered as 'required under section 3(1) of the , a complaint was filed against it.
On receiving the summons, the Chief Municipal Officer appeared, and even before the particulars of the offence were stated to him, filed preliminary objections that the Municipal Council was not a 'motor transport undertaking ' and that the transport vehicles owned by the Council were exempt under section 38 of the Act.
The trial court dismissed the complaint and a revision to the Sessions Court was also dismissed.
A further revision to the High Court under section 439 Criminal Procedure Code, was allowed.
In appeal to this Court, it was contended that: (1) the case being a summons case the dismissal of the complaint was an order of acquittal and not one of discharge and hence, only an appeal lay under section 417, Cr.
P.C., and not a revision under section 439; (2) the appellant did not fail within the definition of the expression 'motor transport undertaking ' in section 2(g) of the Act; and (3) the transport vehicles owned by the appellant were exempt under section 38 of the Act, because, the transport vehicles were used for a purpose connected with the maintenance of 'public order '.
HELD: (i) Since the complaint was dismissed before anything was done it amounted to.
an order of discharge and not an acquittal, and so the revision was competent.
[917 C] (2) The expression 'motor transport undertaking ' in section 2(g) includes a 'private carrier ' as defined in the .
The: appellant fell within the definition of 'private carrier ' inasmuch as the appellant owned transport vehicles and used them solely for the carriage of goods.
It cannot be said that only an undertaking of a commercial nature was intended to be included within the definition of motor transport undertaking, because, (a) the is a beneficial Act and the Legislature intended to enlarge the meaning of the expression 'motor transport undertaking ' and so, the enactment should not be construed strictly; (b) the words of the definition are plain and are not susceptible of any limitation: and (e) section 38, which exempts certain transport vehicles proceeds on the basis that a private carrier carrying on activities which are not of a commercial character would also be included in the expression 'motor transport undertaking '.
[918 C F] 916 (3) The words 'public order ' in section 38 mean 'public peace and tranquility ' and do.
not include 'public health '.
Therefore, the exemption under section 38 is not attracted.
[920 A B] Ramesh Thappar vs State of Madras, ; , explained.


Input:
Appeals Nos. 631 and 632 of 1965.
Appeals by special leave from the judgment and order dated January 7, 8, 1963 of the Gujarat High court in Civil Revision Applications Nos. 116, 117, 173 and 174 of 1961.
Purshottam Trikamadas and I. N. Shrojj for the appellant (in both the appeals).
section section Shukla, for the respondent (in both the appeals).
The Judgment of the Court was delivered by Mitter, J.
These are two appeals by special leave against the judgment and order dated January 8, 1963 of the Gujarat High Court dismissing Civil Revision Applications 116 and 117 of 1961 filed by the appellant and all owing similar applications Nos. 173 and 174 of 1961 filed by the respondent against the common judgment dated December 1, 1960 passed by the District and Sessions Judge of Panchmahals.
The matter arises out of assessments made by the appellant constituted under the Bombay Municipal Boroughs Act, 1925 on the respondent under section 73 of the Act.
The respondents are an electricity company owning inter alia properties bearing several numbers in the municipal borough of Godhra.
For the years 1956 57 and 1957 58 the appellant had fixed the valuation of the properties belonging to the respondent at Rs. 3,25,000/ .
On appeal by the respondent, the Judicial Magistrate fixed the valuation of the properties at Rs. 90,000/ .
On the appellant going in revision, the Sessions Judge fixed the valuation at Rs. 1,25,000/ .
As a result of the High Court 's decision the valuation stood reduced to Rs. 90,000/ .
The present appeals are by the Municipality.
Under section 73(1) of the Bombay Municipal Boroughs Act, 1925 (hereinafter referred to as the 'Act ') "Subject to any general or special orders which the State Government may make in this behalf and to the provisions of sections 75 and 76, a municipality may impose for the purposes of this Act any of the following taxes, namely 483 (i) a rate on buildings or lands or both situate within the municipal borough.
" The procedure preliminary to imposing tax is laid down in section 75 and section 78 deals with the preparation of an assessment list.
Section 58 empowers the municipality to make rules prescribing the taxes to be levied in a municipal brought for municipal purposes etc.
Rules 4, 5 and 7 relevant for our purpose read as follows: "4.
Modes of valuation: (1) For the purpose of detennining tax the following properties shall be valued on the capital basis : (a) All open lands, buildings and yards belonging to the Railway Administration.
(b) All buildings and lands other than those which are actually used for residential purposes belonging to Mills and Factories to which the Indian Factories Act, is applied.
(2) All properties other than those mentioned above shall be valued on the basis of the annual letting value as defined in section 3(1) of the Act.
Mode of determining capital value: The capital value of properties mentioned in rule 4(1) shall, in each case, be determined on such reliable data as the Railway Authorities and the Agents of the mills and the factories may furnish when called upon from time to time to do so and in the absence of any such trust worthy reliable data, it shall be determined by the Chief Officer or by expert valuers employed by the municipality for that purpose.
6. . . . . 7.
Amount of tax : (1) in case of properties which as stated above, are valued on the capital basis the tax to be levied shall be assessed at Rs. 0 8 0 per cent of the capital value and it shall be a direct tax thereon provided however that any fraction of hundred in excess of fifty rupees shall be taken as the next higher hundred and any fraction of fifty rupees or less be taken as the lower hundred.
(2) In case of properties which, as stated above, are valued on the annual letting value the tax to be levied shall be assessed as shown in the appendix annexed hereto.
" 484 Under rule 4(1) (b) above, the buildings of the respondent had to be valued on the capital basis.
Under r. 5 the capital, value of properties had to be determined on such reliable data as the respondent might furnish and in the absence thereof, it would be the duty of the Chief Officer to determine the same.
Before the Judicial Magistrate, one R. R. Tewari, an Assistant Secretary of the respondent who had affirmed an affidavit showing that the approximate value of the seven items of property on which tax was sought to be imposed as per the books of the company was Rs. 41,541 12 9.
He sought to rely on the balance sheets and accounts of the company audited under the Companies Act for the purpose.
The Judicial Magistrate observed that the properties were 40 years old and according to Tewari the life of the office buildings was 50 years while that of others was only 30 years.
Acting on the admission of Tewari that the price of building materials had increased three times the original figures in 195657 and taking, into Consideration the properties were over 40 years old, the Magistrate assessed the capital value at Rs. 90,000/ .
The Sessions Judge dealt with the matter in greater detail and noted that neither party had given him real assistance in determining what should be the proper assessment.
According to him the assessment papers preceding the bills had not been produced and neither party had led any evidence as to how the capital value was to be arrived at.
He however felt that the capital value could not mean merely the book value shown in the books of account ,of the assessee.
He noted that according to the balance sheet for 1955 56 the property and assets under the head"buildings" was shown as below: Buildings.
Cost up to 31st March 1955 Rs. 1,72,866 5 11 Additions during the year 12,398 10 3 Total Rs. 1,85,265 0 2 The said figure included the value of all the buildings of the ,company but those which were to be assessed were only seven ,out of which two residential bungalows and servants quarters ' were to be assessed on the rental value.
The Sessions Judge therefore inferred from the above figures that Rs. 1,85,265/ included at least Rs. 1,00,000/ as the cost up to 31st March, 1955 of the factory buildings in question.
The Sessions Judge found himself unable to accept the contention that the depreciated selling value of the property was the capital value for the purpose of assessment of house tax.
He also did not accept the municipality 's ,contention that the cost of construction of buildings had gone up 485 five times since 1920.
Considering the rival contentions he fixed the capital value at three times the figure shown by the company, viz., Rs. 41,541/ and rounded the same off to Rs. 1,25,000/ .
Taking the view that it was not open to "a Judge in India to base his judgment as a whole or in part or his conclusion upon either Halsbury 's Laws of England or Bean and Lock wood 's book on Rating Valuation Practice" on the ground that these books were irrelevant under the Indian Evidence Act, the learned Judge of the High Court held that "capital value" in night possibly bear four different meanings but the meaning given to the expression in Halsbury 's Laws of England was "not appropriate in the context of the Indian enactment and the Indian Rules".
Referring to the rules made by Godhra Municipality he observed that it could not be said that the municipality had adopted the capital value as one of the methods of ascertaining the rental value or that the municipality had adopted the rental value as one of the methods of ascertaining the capital value.
According to the learned Judge, "capital value ' has to be treated as meaning the value of the building treated as capital at the time of the assessment; in other words, the original cost of construction minus the depreciation or at the most the original cost of construction without depreciation.
" Accepting the figure of Rs. 41,541 12 ,9 as the cost of construction of the building in 1920 as found by the courts below, he observed that the capital value should be "either Rs. 41,541 12 9 or something less after deducting depreciation." According to him "the assessee has not come in revision against the order of the Magistrate fixing the value at Rs. 90,000/ .
Both the courts have erred in considering the probable cost of construction of a new building.
" He therefore held that the courts below had committed a material mistake in the exercise of jurisdiction in relying upon the probable cost of constructing a new building of a similar type in order to estimate the capital value as contemplated by Godhra Municipality and accordingly reduced the capital value fixed by the Sessions Judge to Rs. 90,000/ .
We find ourselves unable to accept the views expressed or the reasoning given in the judgment of 'the High Court.
Section 73 empowered the municipality to impose a rate on buildings or lands.
Now the word 'rate ' had not been defined in the Act but it has a well known meaning.
As observed in Patel Gordhandas Hargovindas vs Municipal Commissioner, Ahmedabad( ') the word has come to our country for the purpose of local taxation from England.
" In that case this Court examined Various statutes bearing on the English Rating Law and held that the word " 'rate ' was (1) [1964] 2 S.C.R.608 at 616.
486 used with respect to a tax which was levied on the net annual value or rateable value of lands and buildings and not on their capital value.
It would therefore not be wrong to say that in the legislative history and practice in England up to 1925, 'rate for the purpose of local taxation meant a tax on the annual value of lands and buildings liable to such taxation.
" The Court went on to examine the methods in use for the purpose of ascertaining the rateable value which were generally three.
It was said : "Where the land or building was actually let, the valuation was based on the rent at which it was let.
Where, however, the land or building was not let, two methods were evolved for the purpose of finding out the rateable value.
The first was to assume a hypothetical tenancy (such as where the same person is the owner and occupier) and find out the rent at which the premises would be let.
The second was based on the capital value of the premises.
But the tax was not levied on the capital value itself.
; the capital value was determined on the structural value of the building to be assessed by what was known to be contractors method or contractor 's test in addition to the market value of the land.
Sometimes the words "effective capital value" were also used since in most cases the actual capital cost of the building plus the market value of land might for some reason or the other be in effective i.e., it might not be rent producing.
Having arrived at the effective capital value it was necessary to apply percentages thereto in order to arrive at the annual value.
" When legislatures in this country enact statutes which closely resemble statutes in England and have the same purpose and object in view, then unless the expressions used in the Indian Statutes are defined, courts of law cannot go wrong in interpreting them in the way English Judges have done.
Further, the words which have acquired a particular shade of meaning in England may be given the same meaning unless there is anything in the statute itself which would be contra indicative.
In Patel Gordhandas 's case( ') the statute which this Court had to interpret was the same Act which is before us in this case.
Consequently, that decision affords us a good guide in forming our own conclusions in this case.
Section 75 of the Act has an Explanation introduced in 1966 which reads as follows : "Explanation For the purposes of a rate on buildings or lands, the basis of valuation may be (i) the annual letting value; (1) ; 487 (ii) the annual value; (iii) the floor area, in the case of Mills, Factories and buildings and lands connected therewith; (iv) the capital value, in the case of vacant lands.
" The Explanation is deemed always to have been substituted for the original by Maharashtra Act 3 of 1966, section 3(b).
Rule 4 of Godhra Municipal Rules shows what properties are to be valued on the capital basis.
What the capital basis is not defined.
The capital value however can be determined in the way laid down in Patel Gordhandas 's case( ') by adopting the contractor 's method.
What that method is has been explained in Ryde on Rating (Eleventh Edition) Chapter 20.
In R. vs School Board for London( ') Cave, J. applied the contractor 's test to schools.
Ryde points out that it was tacitly recognised as applicable in various other cases.
The principle on which the contractor 's basis rests are given by the author at page 439 and the method of its application is given at page 442.
The learned author notes that in "applying the contractor 's basis it is possible to discern five stages.
The first stage is the estimation of the cost of construction of the building.
" There is a difference of view as to whether it is better to take the cost of relacing the actual building.
as it is, or,the cost of a substitute building on the same plan as the actual building but otherwise in an up to date form.
The second stage is "to make deductions from the cost of construction to allow for age, obsolescence and any other factors necessary to arrive at the I effective capital value.
"The third stage is to estimate the cost of the land.
The fourth stage is to apply the market rate or rates at which money can be borrowed or invested to the effective capital value of the building and the land.
The fifth stage is to con sider whether the result of the fourth stage really represents what the hypothetical tenant would pay for the annual tenancy on the statutory terms, and to make any adjustments necessary to ensure that no higher rent is fixed as the basis of assessments than that which it is believed the owner would really be willing to pay for the occupation of the premises.
Rule 5 of the Godhra Municipal Rules lays down that the capital value is to be determined in each case on reliable data furnished by the Mills and the Factories when called upon to do so and in the absence thereof is to be determined by the Chief Officer or expert valuer.
The learned counsel for the respondent contended that here there were reliable data in that the balance sheet of the company showing the value of these properties for the purpose of the Companies Act and there was no reason why the same figures should not be adopted as the capital value of the lands (1) ; (2) (1885) 55 L.J.M.C. 33; C.A. 488 and buildings within the jurisdiction of Godhra municipality.
This clearly is fallacious as under section 211 of the the balance sheet of a company has to be drawn up in the form prescribed by Schedule VI.
Under the said Schedule, , the value of fixed assets has to be shown "distinguishing as far as possible between expenditure upon (a) good will, (b) land, (c) buildings, (d) leaseholds, (e) railway sidings, (f) plant and machinery, (g) furniture and fittings '.
(h) development of property etc.
The fourth column of the form which gives the instructions in accordance with which assets should be made out shows under each head "the original cost and ' the additions thereto and deductions therefrom during the year, and the total depreciation written off or provided up to the end of the year is to be stated.
" It will there fore be noticed that the figures given in the balance sheet are merely statements in terms of the form given in Schedule VI.
They have no relevance in determining the capital value of property for the purpose of assessment to a rate.
It appears to us therefore that the true method of determination of the capital value was not adopted in the courts below.
We therefore set aside the judgment and order of the High Court and remand the matter back to the District Judge for him to determine the capital value in the light of the observations made by us after giving an opportunity to the parties to adduce evidence on the subject.
The costs will abide by the decision of the District Judge.
G.C. Appeal allowed and case remanded.

Output:
Under section 73 of the Bombay Municipal Boroughs Act, 1925 read with rr.
4(1) and 5 made thereunder a rate on nonresidential buildings belonging to factories and mills was leviable on a capital basis, and the capital value for this purpose was to be worked out, if 'reliable data ' were furnished by the assessee, on the basis of such data.
The respondent company owned certain buildings on which rat was leviable under r. 4(1) on the basis of capital value.
The respondent company claimed that the actual cost of construction of the buildings in 1920 ought to be taken as the capital value.
The Municipality of Godhra however made its own estimate of the capital value.
Thereafter the Judicial Magistrate and the Sessions Judge made valuations taking into account the rise in the cost of building materials since 1920.
The High Court in revision upheld the view that the actual cost minus depreciation thereon should be the capital value; it observed that the English law and practice as to levy of rates was not relevant in the Indian context.
The Municipality appealed.
HELD: (i) When legislatures in this country enact statutes which closely resemble statutes in England and have the same purpose and object in view, then unless the expressions used in the Indian Statutes are defined courts of law cannot go wrong in interpreting them in the way English judges have done.
Further, the words which have acquired a particular shade of meaning in England may be given the same meaning unless there is anything in the statute its, If which would be contraindicative.
[486 F G] (ii) Section 73 empowered the municipality to impose a rate on buildings or lands.
The word 'rate ' had not been defined in the Act but it has a well known meaning.
In Patel Gordhandas,s, case this Court examined various statutes bearing on the English rating law and held that the word 'rate ' was used with respect to a tax which was levied on the net annual value or rateable value of lands and buildings and not on their capital value, but capital value could be adopted as the basis for working out the annual value.
[485G 486E] (iii) Rule 4 of the Godhra Municipal Rules shows what properties are to be valued on capital basis.
What the capital basis is not defined.
The capital value however can be determined in the way laid down in Patel Gordhandasg case by adopting the contractor 's method.
[487B].
(iv) The figures given in the balance sheet of the company could not be regarded as 'reliable data ' for the purpose of r. 5.
The figures given in the balance sheet are merely statements in terms of the form given in 482 Schedule VI.
They have no relevance in determining the capital value of property for the purpose of assessment to a rate.
[488 B C] [Case remanded to District Judge for determining capital value by adopting contractors method in the light of the observations made by this Court.] Patel Gordhandas Hargovindas vs Municipal Commissioner, Ahmedabad, ; , relied on.
R. vs School Board for London, (1885) 55 L.J.M.C. 33, referred to.


Input:
Appeal No. 25 of 1969.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated December 11, 1968 of the Patna High Court in Election Petition No. 4 of 1968.
D. Goburdhun, for the appellant.
Birendra Prasad Sinha, S.K. Bagga, Harder Singh and section Bagga, for respondent No. 1.
Harder Singh, for respondents Nos. 2 and 3.
840 The Judgment of the Court was delivered by Hegde, J.
The principal question raised in this appeal under section 116A of the Representation of People Act, 1951 (to be hereinafter referred to as the Act) is as to the scope of section 23(3) of the Representation of People Act, 1950 (to be hereinafter referred to as the 1950 Act).
A few subsidiary contentions have also been canvassed.
They will be considered at the appropriate stage.
The election petition from which this appeal arises relates to the Darbhanga Local Authorities Constituency of the Bihar Legislative Council.
The calendar for the election for that constituency was as follows: 1.
Last date for filing nomination papers 2 4 1968.
Date of scrutiny of nomination papers 4 4 1968.
Last date for withdrawal of candidatures 6 4 1968.
Date of Poll 28 4 1968.
Date of declaration of result 29 4 1968.
Originally five candidates submitted their nomination for the election in question.
On scrutiny all of them were held to have been validly nominated.
Two of them later withdrew their candidatures within the period prescribed leaving in the field Shri Baidyanath Panjiar, the appellant herein, Shri Raj Kumar Mahaseth, respondent No. 2 and Shri Gangadhar, respondent No. 3.
There were six polling stations in the constituency.
134 votes were polled out of which 33 votes were polled at Dalsingsarai polling station.
Counting of the votes showed that the appellant had secured 45, the second respondent 49 and the third respondent 40, first preference votes.
As none of them obtained an absolute majority of the votes cast, the third respondent was eliminated and his second preference votes were taken into.
consideration.
14 of his second preference votes went to the appellant and 5 to the second respondent.
Therefore the appellant was declared elected.
His election was later challenged by the 1st respondent herein.
The High Court has set aside the election and declared the 2nd respondent elected on the ground that on counting the validly cast votes, the second respondent has secured more votes than the appellant.
It held that some of the votes Cast were not valid votes.
The controversy relating to the validity of some of the votes polled arose under the following circumstances.
In the electoral roll as it stood on the last date of filing nomination papers, the registered voters were only 123; 16 of the registered voters were of the members of Dalsingsarai Notified Area Committee.
On April 13, 1968, as per a notification under section 389(c) of the Bihar 841 and Orissa Municipal Act, 1922, 40 members were nominated as members to the said Notified Area Committee in place of the old members.
Most of them were newly appointed members.
To be exact 35 of the 40 members nominated were new members.
Thereafter the electoral roll was amended on the 27th April, 1968, just a day prior to the polling.
As per the amended electoral roll, there were 39 electors in the Dalsingsarai polling station.
Only four of them stood registered in the electoral roll as it stood on April 2, 1968.
12 of those who were electors under the original roll were removed from the roll.
33 out of the 39 electors included in the electoral roll relating to.
Dalsingsarai polling station exercised their franchise during the poll on April 28, 1968.
The question for consideration is whether it was within the competence of the electoral registration officer to amend the electoral rolls after the last date for making the nomination was over.
Provisions relating to the preparation of electoral rolls for the Legislative Councils ' Constituencies are found in Part IV of the 1950 Act.
Section 27(2) of the Act prescribes the mode of preparation of the electoral rolls regarding the local authorities constituencies of a Legislative Council.
Clause (e) of that sub section stipulates that provisions of sections 15, 16, 18, 22 and 23 shall apply in relation to local authorities ' constituencies as they apply in relation to assembly constituencies.
Section 22 deals with correction of entries in the electoral rolls.
Section 23 deals with the inclusion of names in the electoral rolls.
Sub section
(3) of that section provides that: "No amendment, transposition or deletion of any entry shall be made under section 22 and no direction for the inclusion of a name in the electoral roll of a constituency shall be given under this section, after the last date for making nomination for an election in that constituency or in the parliamentary constituency within which that constituency is comprised and before the completion of that election.
" The object behind sub section
(3) of section 23 of the 1950 Act would be clear if we examine the scheme of the Act and the principles underlying that scheme.
Part III of the 1950 Act provides for the preparation of the electoral rolls for assembly constituencies.
Section 15 provides that for every constituency, there shall be an electoral roll which shall be prepared in accordance with the provisions of that Act under the superintendence, direction and control of the Election Commission.
Section 16 enumerates what disqualifications will disentitle a person from being enrolled as a voter.
Section 18 provides that no person shall be entitled to be registered in the electoral roll for any constituency more than once.
842 Section 18 enunciates the principle "one person one vote".
Section 22 provides for correction of entries in the electoral rolls.
Section 23 (1 ) permits a person whose name is omitted from the rolls to apply for inclusion.
Sub section (2) of section 23 authorises the electoral registration officer to include the name of the applicant in the rolls if he is satisfied that he is entitled to be registered.
The ,object of the aforementioned provision is to.
see that to the extent possible, all persons qualified to be registered as voters in any particular constituency should be duly registered and to remove from the rolls all those who are not qualified to be registered.
(3 ) of section 23 is an important exception to the rules noted earlier.
It gives a mandate to the electoral registration officers not to amend, transpose or delete any entry in the electoral roll of a constituency after the last date for making nominations for election in that constituency and before the completion of that election.
If there was no such provision, there would have been room for considerable manipulations, particularly when there are only limited number of electors in a constituency.
But for that provision, it would have been possible before the concerned authorities to so.
manipulate the electoral rolls as to advance the prospects of a particular candidate.
This would be more so if either all or a section of the electors are persons nominated to local authorities.
The legislative mandate like the one embodied in section 23(3) must be considered as mandatory not merely because of the language employed in that sub section but also in view of the purpose behind the provision in question.
In our opinion, cl.
23(a) takes away the power of the electoral registration officer or the chief electoral officer to correct the entries in the electoral rolls or to include new names in the electoral rolls of a constituency after the last date for making the nominations for election in that constituency and before the completion of that election.
Section 23(3) does not deal with any mode or procedure in the matter of registering the voters.
It interdicts the concerned officers from interfering with the electoral rolls under the prescribed circumstances.
It puts a stop to the power conferred on them.
Therefore it is not a question of irregular exercise of power but a lack of power.
It was next urged by Mr. Goburdhan, learned Counsel for the appellant that section 23(3) of the 1950 Act is subject to section 27(2) of the same Act and therefore in view of the direction issued by the electoral registration officer to include the names of the electors in question, it was not open to the election petitioner to take any objection to the same.
We see no substance in this contention.
There is no conflict between sub section
(2) of section 23 and sub section
(2) of section 27.
In fact, as noticed earlier, the provisions of section 23 have been incorporated into section 27(2) in view of section 27(2)(e).
A fair reading of the various clauses in section 27(2) will make it clear that 843 the entries in an electoral roll of a constituency, as they stood on the last date for making the nominations for an election in that constituency should be considered as final for the purpose of that election.
It was next urged that in view of section 62 (1 ) of the Act no valid.
objection can be taken to the franchise exercised by the electors whose names were included in the electoral roll on April 27, 1968.
Section 62 (1 ) says that "no person who is not, except as expressly provided by this Act, every person who is,.
for the time being entered in the electoral roll of any constituency shall be.
entitled to vote.
in that constituency.
" That provision no doubt stipulates that every person who is for the time being registered in the electoral roll of any constituency except as expressly provided by the Act shall be entitled to vote in that constituency.
The question is which is the electoral roll referred to in that section ? Is it the electoral roll that was in force on the last date for making nominations for an election or is it the electoral roll as it stood on the date of the polling ? For answering that question we have to go ' ' back to section 23(3) of the 1950 Act.
In view of that provision the electoral roll referred to in section 62 ( 1 ) of the Act must be understood to be the electoral roll that was in force on the last day for making* the nominations for the election.
It was next urged that even if we hold that in including fresh electors in the electoral roll on April 27, 1968, the electoral registration officer contravened section 23(3) of the 1950 Act, the same cannot be made a ground for invalidating the election as the contravention in question does not come within the purview of subs.
(1) ors.
100 of the Act.
This contention again does not appear to be sound.
Clause (d)(iii) of sub section
(1) of section 100 of the Act provides that if the High Court is of the opinion that the result of the election in so far as it concerns the returned candidate has been materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, it shall declare the election void.
We have earlier come to.
the conclusion that the electoral registration officer had no power to include new names in the electoral roll on April 27, 1968.
Therefore votes.
of the electors whose names were included in the roll on that date must be held to be void votes.
That conclusion satisfies one of the conditions prescribed in section 100(1)(d).
We have now to see whether the other conditions prescribed in that clause namely whether the High Court on the material before it could have been of the opinion that the result of the election in so far as it concerned the returned candidate has been materially affected ' because of the reception of the votes which are void.
The High Court elaborately considered that question.
It has examined each one of the disputed votes and has come to the conclusion that if 844 those votes had been excluded, the valid votes received by the contesting candidates in the first count would have been as follows: Appellant 32 Respondent No. 2 46 Respondent No. 3 23.
In the second count after the elimination of the third respondent and taking into consideration the second preferences give by the electors, who gave their first preference to him the following would have been the position: Appellant 43 votes and Respondent No. 2 57 votes.
No matter was placed before us to show that this conclusion was wrong.
There was some controversy about two votes but we do not think it necessary to go into the same as any decision as regards their validity will not affect the final conclusion.
Before leaving this case, it is necessary to mention that at one stage of the arguments, the learned Counsel for the appellant contended that the decision of this Court in B.M. Ramaswamy vs B.M. Krishnamurthy and Ors.(1) governs the facts of this case.
But after some discussion he gave up that contention.
The ratio of that decision has no relevance for our present purpose.
In that case, the High Court came to the conclusion that the corrections in the concerned electoral roll had been made before the last date prescribed for filing nominations to the election but it came to the conclusion that the electors newly added to the list were not qualified to be registered as electors This Court overruled that finding holding that every person whose name finds place in the electoral roll must be ' held to be qualified to be a candidate whether he was qualified to be registered as an elector or not.
In other words it upheld the finality of the electoral roll as it stood on the last date for filing nominations for the election.
For the reasons mentioned above this appeal fails and the same is dismissed with costs.

Output:
Sub section (3) of section 23 provides that no direction for the inclusion of name in the electoral roll of a constituency shall be given after the last date for making nomination for an election in that constituency and before the completion of that election.
The appellant 's election to the Bihar Legislative Council was challenged on the ground that some of the votes cast in his favour were not valid because the names of the voters were included in the electoral roll after the last date for filing nomination.
The High Court set aside the election and declared the second respondent elected since on counting the validly cast votes the second respondent secured more votes than the appellant.
On the question whether it was within the competence of the electoral registration officer to amend the electoral rolls after the last date for making the nomination was over, HELD: The legislative mandate like the one embodied in section 23 sub section
(3) must be considered as mandatory not merely because of the language employed in that sub section but also in view of the purpose behind the provision.
The sub section does not deal with any mode or procedure in the matter off registering the voters.
It interdicts the concerned officers from interfering with the electoral rolls under the prescribed circumstances.
It puts a stop to the power conferred on them.
Therefore it is not a question of irregular exercise of power but a lack of power.
[842 D.F.] There is no conflict between sub section (2) of section 23 and subs.
(2) of section 27 because a fair reading of the various clauses in section 27(2) will make it clear that it is the electoral roll of a constituency as it stood on the last date for making the nominations for an election in that constituency that is to be considered final for the purpose of that election.
[842 H]