Input:
Civil Appeal No. 914 of 1968.
(From the judgment and decree dated the 9th April, 1962, of the Allahabad High Court in first Appeal No. 283 of 1950).
Naunit Lal, K. G. Bhargava and Miss Lalita Kohli for the appellant.
G. section Pathak, D. P. Singh and M. G. Goswami for respondents nos.
1(a) to 1(f).
The Judgment of the Court was delivered by GOSWAMI, J.
This appeal by certificate from the judgment and decree of the Allahabad High Court raises an important question with regard to the construction of a will.
The respondent Gokul (whose heirs have been impleaded after his death) was the original plaintiff in a suit for declaration that he was the absolute owner under a will of the property in suit and for possession of certain of them.
He also claimed certain movable properties with which we are not concerned in this appeal.
The property in suit was originally in exclusive ownership and possession of Bhola Chaubey, the testator.
Bhola Chaubey, was governed by the Mitakshra School of Hindu Law.
He belonged to the class of priests and was an old man of 67 years at the time when he executed the will on September 21, 1916.
He had then a legally wedded wife, Smt, Jarian, approaching nearly her forty fifth year and they had no issue in wedlock.
The only person whom the testator appeared to have almost treated like a son was the respondent Gokul, doubly related to the testator, being his sister 's son and also his wife 's brother 's son.
Gokul had been with him since childhood and the testator got him married.
Gokul in return had been serving the testator to his satisfaction and was in enjoyment of his full confidence and affection till the testator 's death in 1918.
Gokul was then aged about 23 years.
It was directed in the will that Smt.
Jarian would get the obsequies and other religious rites of the testator performed by Gokul.
After the death of the testator Smt.
Jarian and Gokul continued to live in cordiality for nearly 18 years.
Feelings, however, got 927 estranged some time after that and there was even litigation, criminal and civil, between Smt.
Jarian and Gokul.
It appears Smt.
Jarian, who died in March, 1948, had executed a gift deed and a will in respect of certain properties in suit in favour of the appellant, Navneet Lal.
All this led to the institution of the present suit out of which this appeal has arisen.
The case of the appellant was that Bhola Chaubey had given an absolute estate under the will to his wife, Smt.
Jarian, and she was, therefore, entitled to deal with the property as she liked and hence the deed of gift and the will in favour of the appellant were perfectly valid.
According to the appellant the respondent had no right to file the suit basing upon the will executed by Bhola Chaubey.
According to the respondent the will conferred on Smt.
Jarian only a life estate during her life and after her death an absolute estate of the testator 's entire property on the respondent.
The Civil Judge, Mathura, decreed the respondent 's suit except with reference to the movable property mentioned in Schedule O to the plaint as well as in respect of certain muafi zamindari property in Schedule A to the plaint.
The appellant appealed to the High Court at Allahabad and when the matter came up for disposal by a Division Bench of that court, there was a difference of opinion between the Judges.
Srivastava, J. held that the testator had no intention of conferring a limited life estate only on his wife and that she acquired an absolute estate by virtue of the will.
On the other hand, B. Dayal, J. took a contrary view holding that Bhola Chaubey intended to give merely a life estate to Smt.
Jarian and to make Gokul full owner of the property after her death.
The appeal was then set down for hearing before a third Judge, (Dhawan, J.) who agreed with B. Dayal, J. resulting in dismissal of the appeal.
We are concerned in this appeal only with the construction of the will executed in the year 1916.
From the earlier decisions of this Court the following principles, inter alia, are well established: (1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed.
[Ram Gopal vs Nand Lal and others(1)].
(2) In construing the language of the will the court is entitled to put itself into the testator 's armchair [Venkata Narasimha vs Parthasarathy(2)] and is bound to bear in mind also other matters than merely the words used.
It must consider the surrounding circumstances, the position of the testator, his family 928 relationship, the probability that he would use words in a particular sense. but all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document.
[Venkata Narasimha 's case supra and Gnanambal Ammal vs T. Raju Ayyar and Others(1)].
(3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory [Raj Bajrang Bahadur Singh vs Thakurain Bakhtraj Kuer(2)].
(4) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expression inoperative.
The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like.
Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator.
Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus.
[Paerey Lal vs Rameshwar Das(3)].
(5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it, Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will.
[Ramachandra Shenoy and Another vs Mrs. Hilda Brite and Other(4)] Bearing in mind the above principles we may now look at the will in question as a whole.
This will is written in the urdu language.
An official translation is placed on the record.
From the contents of the will we find the background and the exact position of relationship of the parties set out earlier.
Gokul was residing with Bhola Chaubey 929 and Smt.
Jarian.
It may bear repetition that Gokul was held in great love and affection by the testator who was keenly anxious for the welfare both of his wife and of Gokul.
There is yet another feature which is prominent in the will.
The testator was apprehensive of his only brother, Ram Raj and his nephew, Kishnu, who "might trouble his wife and Gokul after his death." From such of the aforesaid prefatory recitals as appear in the will, two objects stand out, namely, that he was deeply interested in the enjoyment of his property movable and immovable after his death by his wife and after her death by Gokul.
The second object was that he intended that his property should not fall into the hands of his brother and nephew who had been separate from him since long after some arbitration and even bore ill will against him and his wife.
After the above revelation of his mental attitude in the will there follows the following recitals: "So long as I, the executant, am alive, I myself shall remain the owner in possession (malik wa qabiz) of my entire movable and immovable property and of the income from Birt Jijmani.
After my death Mst.
Jarian, the wedded wife of me, the executant, shall be the owner (malik) of my entire estate, movable and immovable, and of the income from Birt Jijmani and shall have all the proprietary powers (aur usko jamiya akhtiyarat malikana hasil honge).
After the death of Mst.
Jarian, Gokul aforesaid shall be the owner of the entire estate left by me (malik kamil jaidad matruka meri ka hoga), and he shall have all the proprietary powers and the power of making transfer of all sorts (aur usko jamiya akhtiyarat malikana wa inteqalat har qism hasil honge).
If per chance, Mst.
Jarian dies in my life time, then Gokul aforesaid will be the absolute owner (malik kamil) of the estate left by me (matrura meri) and he shall have power of making all sort of transfers (aur usko har quism ke akhtiyarat inteqalat hasil honge).
Gokul aforesaid should go to Jijmana and should continue to give to Mst.
Jarian during her life time the charitable gifts (daan dakshina) which he brings from there.
After her death he might continue to be benefited thereby.
Jarian should get my obsequies, Barsi (annual death ceremony), Chhamchhi etc.
performed through Gokul aforesaid according to the custom prevalent in the brotherhood.
It will be the duty of Gokul aforesaid to obey and serve my wife Mst.
Jarian.
It will be necessary for Mst.
Jarian to keep my heir (waris) Gokul aforesaid and to act in consultation with him.
At present I have the following immovable properties and the Birt Jijmani.
If in addition to these I purchase or get any property the aforesaid persons shall be the owners of that also according to.
the aforesaid conditions".
Mr. Naunit Lal, on behalf of the appellant, submits that since the testator stated in the will that after his death Smt.
Jarian "shall be the 930 owner (malik) of my entire estate. and shall have all the proprietary powers (aur usko jamiya akhtiyarat malikana hasil honge)", it is absolutely clear that he intended to confer upon his wife an absolute estate to his entire property.
Mr. G. section Pathak, on behalf of the respondents, contests the proposition.
In support of his contention, Mr. Naunit Lal draws our attention to several decisions wherein the word `malik ' has been noticed and explained.
The term `malik ' when used in a will or other document as descriptive of the position which a devisee or donee is intended to hold, has been held apt to describe an owner possessed of full proprietary rights, including a full right of alienation, unless there is something in the context or in the surrounding circumstances to indicate that such full proprietary rights were not intended to be conferred, but the meaning of every word in an Indian will must always depend upon the setting in which it is placed, the subject to which it is related, and the locality of the testator from which it may receive its true shade of meaning.
[Sasiman Chowdhurain and others vs Shib Narayan Chowdhury and others (1) ].
We find observations to the same effect in Musammat surajmani and others vs Rabi Nath ojha and another(2).
It is, approved therein that in order to cut down the full proprietary rights that the word malik imports something must be found in the context to qualify it.
Similarly counsel has referred to the expression `malik mustakil ' which was noticed in a decision of this Court in Krishna Biharilal vs Gulabchand and Ors.(3), and this Court observed at page 31 as follows: "The meaning of the expression `malik mustakil ' an urdu word, has come for consideration before this Court in some cases.
In Dhyan Singh and anr.
vs Jugal Kishore & Anr.(4), this Court ruled that the words `malik mustakil ' were strong, clear and unambiguous and if those words are not qualified by other words and circumstances appearing in the same document, the courts must hold that the estate given is an absolute one We are, however, not required to consider the words `malik mustakil ' in this case.
But it is clear that even those words can be qualified by other words and circumstances appearing in the same document.
It is, therefore, abundantly clear that the intention of the testator will have to be gathered from all the relevant and material contents in the entire will made in the situation in which the testator was placed in life in the back ground of his property, his inclinations, wishes, desires and attitudes as can be clearly and unambiguously found either from the recitals from the instrument or from absolutely undoubted contemporaneous legally admissible evidence.
931 Reading the present will as a whole and if every disposition has to be rationally harmonised, we find that the testator intended a life estate for his wife so long as she lived.
This is consistent with his description of Gokul as "my heir (waris)" after his death.
It is further consistent with the recital that "if per chance, Mst.
Jarian dies in my life time, then Gokul aforesaid will be the absolute owner (malik kamil) of the estate left by me (matruka meri) and he shall have power of making all sorts of transfers (aur usko har quism ke akhtiyarat inteqalat hasil honge)".
In obvious contrast even though Smt.
Jarian was made the malik of his entire estate after his death "having all the proprietary rights" nothing is stated about her "power of making all sorts of transfers" which power is expressly mentioned as belonging to him and also exclusively conferred upon Gokul after Smt.
Jarian 's death.
While describing his own "proprietary powers" the testator made reference to his "power of making transfers of all sorts".
This power of making transfer which was prominent in the mind of the testator at the time of execution of the will is conspicuous by total omission in relation to Smt.
Jarian 's enjoyment of the property.
We have to give due importance to the lexicon in the will and we find that the testator has made a definite distinction between mere ownership of property and ownership of the same coupled with powers of transfer "in every way".
Ordinarily, however, without such clear evidence from the recitals in the will itself it may not be possible to hold that ownership of property, which is devised, without any thing more, would not connote absolute ownership of the same with the power of alienation.
There is another significant feature in the recitals, when reference is made in the will to acquisition of future property.
Says the testator "if in addition to these I purchase or get any property the aforesaid persons shall be the owners of that also according to the aforesaid conditions".
The testator thus unerringly conceives of any future property being owned by both, by the widow during her life time and by Gokul after her death in the same manner as the property that had already been bequeathed.
The expression "according to the aforesaid conditions" is, therefore, very significant in the context.
We also find that during her life time Gokul would be collecting "daan dakshina" of the jijmani to Smt.
Jarian and after her death Gokul would enjoy the same.
There is no contemplation of any possibility to deprive Gokul of the enjoyment of the property in any event.
All the above features run counter to the theory of an absolute estate in favour of Smt.
Jarian.
There is still another clinching factor.
It is clear from the will that the testator had misunderstanding and quarrels with his brother regarding ancestral property and the matter had to be settled by arbitration leading to partition and separate enjoyment of property as far back as 1889.
It also appears from the recitals in the will that he had grave apprehension that after his death his only reversioners, his brother and nephew, "might trouble and harass my wife Mst.
Jarian and my sister 's son Gokul.
" One thing was, therefore, clear that the testator never intended that his property should pass to his brother and nephew.
This intention of the testator would 932 best be achieved by holding that there was a devise of a life estate to his wife and an absolute estate thereafter to Gokul indicating a different line of inheritance in the will.
On the other hand, if any absolute estate would have been conferred on the widow, then on her death the property would have passed on by inheritance to her husband 's heirs who were none else than the brother and the nephew of the testator.
There was no other heir of Mst.
Jarian to inherit the property after her death.
A Plenitude of absolute estate in favour of the wife will make the absolute bequest to Gokul void in law.
No such repugnant interpretation detrimental to the interest of Gokul can be made in the light of the entire tenor of the instrument.
Having regard to the context and the circumstances apparent from the will, we are clearly of opinion that the testator intended to bequeath in favour of his widow only a life estate and after her death an absolute estate to Gokul.
That being the position the will by Smt.
Jarian in favour of the appellant fails and her gift in favour of the appellant also similarly fails on her death.
The respondent 's suit is rightly decreed by the courts below.
The appeal fails and is dismissed.
We will, however, make no order as to costs.
S.B. Appeal dismissed.

Output:
One 'BC ', governed by the Mitakshra School of Hindu Law, being issueless and apprehending the claim to his property after his death as reversioners by his only brother 'RR ' and his nephew 'K ' who were inimical to him since the partition of their ancestral property in 1899, and possible harassment of his wife and 'G ', the respondent, executed a Will on September 21, 1916, in the Urdu script.
The respondent 'G ' being the son of the testator 's sister married to testator 's wife 's brother was doubly related.
As per the Will, 'G ' was to perform the obsequies and other annual death ceremonies etc.
, being his 'waris ' and the "Malik Kamil ' absolute owner" having all the proprietary powers and the power of making transfers of all sorts", while his wife was to be in possession and enjoyment of the property during her life time.
From the date of death of the testator in 1918 for about 18 years the widow and 'G ' lived in cordiality but got estranged later due to estrangement of feelings resulting in several civil and criminal litigation between them.
The widow died in 1948 executing a gift deed and a Will in respect of certain properties in favour of the appellant 'NL '. 'G ' filed a civil suit claiming his rights under the Will dated 21 September, 1916, and the appellant defendant contested it on pleas that the widow of 'BC ' having an absolute right over the property under the said Will validly made the gift deed and the Will of 1948 in his favour and that the respondent plaintiff had no locus standi to file the suit.
The suit was decreed.
On appeal to the Allahabad High Court, as there was a difference of opinion between the Judges of the Division Bench on the nature of the widow 's estate, one opining as the Will conferring a "limited estate" and the other opining as conferring an "absolute estate" the appeal was set down to a third Judge who agreed with the view that the Will conferred only a "limited estate" upon the widow and dismissed the appeal.
Confirming the decree of the courts below and dismissing the appeal by certificate, the Court, ^ HELD : (1) The following are the established principles for construing the language of the Will.
(a) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances being considered to find out the intended meaning of such words employed therein.
[927F G] (b) In construing the language of the Will the court is entitled to put itself into the testator 's armchair and is bound to bear in mind also other matters than merely the words used like the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense all as an aid to arriving at a right construction of the Will, and to ascertain the meaning of its language when used by that particular testator in that document.
[927G H, 928A] (c) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the Will as a whole with all its provisions and ignoring none of them as redundant or contradictory.
[928B] (d) The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of 925 the expression inoperative.
The court will look at the circumstances under which the testator makes his Will, such as the state of his property, of his family and the like.
Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator.
Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create and such hiatus.
[928C E] (e) It is one of the cardinal principles of construction of Wills that to the extent that it is legally possible effect should be given to every disposition contained in the Will unless the law prevents effect being given to it.
Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the Will.
[928E G] Ram Gopal vs Nand Lal and others ; Venkata Narasimha vs Parthasarathy, 42 Indian Appeals 51/72; Gnanambal Ammal vs T. Raju Ayyar and others, ; Raj Bajrang Bahadur Singh vs Thakurain Bakhtraj Kuer, ; Pearey Lal vs Rameshwar Das [1963] Supp.
SCR 834/839/842 and Ramachandra Shenoy and Anr.
vs Mrs. Hilda Brite and others. , applied.
(ii) The term "malik" when used in a Will or other document as descriptive of the position which a devisee or donee is intended to hold, has been held apt to describe an owner possessed of full proprietary rights, including a full right of alienation, unless there is something in the context or in the surrounding circumstances to indicate that such full proprietary rights were not intended to be conferred, but the meaning of every word in an Indian Will must always depend upon the setting in which it is placed, the subject to which it is related and the locality of the testator from which it may receive its true shade of meaning.
The intention of the testator will have to be gathered from all the relevant and material contents in the entire Will made in situation in which the testator was placed in life in the background of his property, his inclinations, wishes, desires and attitudes as can be clearly and unambiguously found either from the recitals from the instrument or from absolutely undoubted contemporaneous legally admissible evidence.
Hence, even the words "malik muakkil" can be qualified by other words and circumstances appearing in the document.
[930 B C & G H] Sasiman Chowdhurain and others vs Shib Narayan Chowdhury and others, 49 Indian Appeals 25/35; Musammat Surajmani and others vs Rabi Nath Ojha and another, 35 Indian Appeals 17; Krishna Biharilal vs Gulabchand and others, (1971) Supp.
SCR 27 and Dhyan Singh and anr.
vs Jugal Kishore and anr.
, [1952] SCR 478, discussed.
(iii) In the instant case, the testator intended a life estate for his wife so long as she lived as is clear from the reading of the present Will as a whole.
This is consistent with his description of Gokul as "my heir (waris)" after his death.
It is further consistent with the recital that "if per chance, Mrs. Jarian dies in my life time, then Gokul, aforesaid will be the absolute owner (malik kamil) of the estate left by me (matruka meri) and he shall have power of making all sorts of transfers (aurusko har qism ke aktiyarat inteqalat hasil honge)".
In obvious contrast even though Smt.
Jarian was made the malik of his entire estate after his death "having all the proprietary rights" nothing is stated about her "power of making all sorts of transfers" which power is expressly mentioned as belonging to him and also exclusively conferred upon Gokul after Smt.
Jarian 's death.
While describing his own "proprietary powers" the testator made reference to his "power of making transfers of all sorts".
This power of making transfers which was prominent in the mind of the testator at the time of execution of the Will is conspicuous by total omission in relation to Smt.
Jarian 's enjoyment of the property.
The testator has made the distinction between mere ownership of property and ownership of the same coupled with a transfer in every way.
[931 A D] 926 Further, from the recitals in the Will about his only reversioners viz., his brother and nephew "might trouble and harass my wife Mst.
Jarian and my sister 's son Gokul", it is clear that the testator never intended that his property should pass to his brother and nephew.
This intention would be achieved by holding that there was a devise of a life estate to his wife and an absolute estate thereafter to Gokul indicating a different line of inheritance in the Will on the other hand, if any absolute estate would have been conferred on the widow, then on her death the property would have passed on by inheritance to her husband 's heirs who were none else than the brother and the nephew of the testator.
There was no other heir of Mst.
Jarian to inherit the property after her death.
[931 G H, 932 A B] A plenitude of absolute estate in favour of the wife will make the absolute bequest to Gokul void in law.
No such repugnant interpretation detrimental to the interest of Gokul can be made in the light of the entire tenor of the instrument.
The testator intended to bequeath in favour of his widow only a life estate and after her death an absolute estate to Gokul.
[932B C]


Input:
ition Nos.
829/79, 1104, 200 2655 of 1980.
(Under article 32 of the Constitution of India).
G. N. Dikshit, section Markendeya, P. Sinha, M. M. Temai, J. K Nayyar and section K Bisaria with him for the Petitioners.
section R Gambhir for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The petitioners are nomad graziers of Gujarat and Rajasthan, who wander from place to place with their sheep, goats and cattle in search of pasture and foliage.
Boundaries of States present no barriers to them.
After all, to them and to their livestock, it is a question of survival.
In their wanderings they often pass through the State of Madhya Pradesh en route some times to Uttar Pradesh and some times to Maharashtra.
This happens particularly in times of drought in Gujarat and Rajasthan The powers that be in the State of Madhya Pradesh became apprehensive that uninhibited passage of large herds of these animals through Madhya Pradesh may lead to large scale devastation of their forest wealth.
So they hit upon a plan to prevent foreign cattle ' from browsing in Madhya Pradesh forests.
For the moment, it was forgotten that India is one country and no Indian is a foreigner in any of the constituent States of India.
The plan was this: The enabled the State Government to make rules to regulate the cutting of grass and pasturing of cattle in protected forests (Sec.
32(i) and, generally, to carry out the provisions of the Act (Sec. 76).
We may note here 'cattle ' as defined by section 2(i) includes buffaloes, sheep, goats and many other specie of browsing animals.
We may also note that we are concerned in this case with protected forests only and not reserved forests.
Rules had been made earlier by the Madhya Pradesh Government in 1974 called the Madhya 126 Pradesh Grazing Rates Rules, 1974 by which provision was made A for grazing licences, transit grazing licences, grazing rates and other subjects.
Rule 4 prohibited grazing in closed coupes, plantation area and such other areas as were declared as closed for grazing by the Divisional Forest officer.
Rule 3 provided for the issuance of licences for grazing in particular grazing units, each forest range being treated as a grazing unit till the constitution of such grazing units.
Rule S provided for the issuance of transit licences for transit of cattle through Government forests in the State of Madhya Pradesh, so that cattle in transit may not graze continuously for more than a month in a particular grazing unit.
Rule 6 prescribed grazing rates, commercial and transit.
For buffaloes it was Rs. 6 per head per year while for goats and sheep, it was Re. 1 per head per year whether it was for commercial or transit purposes.
Rule 7 prescribed grazing rates for 'foreign cattle of adjoining States '.
Whether the cattle grazed in the forest or passed through the forest, Grazing was permitted at the rate of Rs. 10 per head per year in the case of buffaloes and Rs. 2 per head per year in the case of goats and sheep.
In 1979, the rules made in 1974 were superseded and fresh rules were made.
They are the rules now in force.
Rule 2(5) bans grazing in reserved forests.
Rule 3 provides for the issue of grazing licences in grazing units so constituted.
Until grazing units are constituted, each forest range is to be treated as a separate grazing unit.
Rule 3(2) provides for the levy of grazing charges at rates to be notified from time to time.
Rule 4 prohibits grazing in closed coupes, plantation areas and other areas which are declared as closed for grazing by the Divisional Forest officer.
Rule 5 provides for transit grazing licences, on payment of grazing charges, for the transit of cattle through Government forests where the owners of the cattle are residents of Madhya Pradesh.
Cattle in transit, however, are not allowed to graze continuously in the same grazing unit for more than 30 days.
Rule 6 enables the Government to notify from time to time the rates of grazing charges and transit grazing charges payable by residents of Madhya Pradesh.
Rule 7 provides for the levy of grazing rates for 'foreign cattle of adjoining States '.
The rule enables the State Government to prohibit, restrict, or in their discretion to grant owners of cattle residing outside the State of Madhya Pradesh grazing or transit grazing facilities for their cattle on payment of charges to be notified from time to time.
Rule 7(2) further empowers the Government to specify the specific grazing areas, the points of entry and exit of the route to be followed by the cattle, 127 the period during which grazing or transit grazing should be completed, etc.
On June 28, 1979, two notifications one, under rule 6 and the other, under rule 7 were issued notifying the rates of charges for the issue of grazing and transit grazing licences.
In respect of cattle belonging to residents of Madhya Pradesh, the grazing rate is Re. 1 per year for each animal in the case of goats and sheep.
Nothing is to be charged in the case of buffaloes.
The notification issued under rule 7 prescribes the routes to be followed by the cattle of Rajasthan and Gujarat while in transit through the State of Madhya Pradesh.
It also stipulates that the owners of cattle must take the cattle through the State of Madhya Pradesh within a period of 45 days after the issue of licences.
The prescribed grazing rates are Rs. 10 per animal in the case of buffaloes and Rs. 5 per animal in the case of sheep and goats.
Apparently the Government of Madhya Pradesh wants to inhibit the influx of cattle of other States (described in the rules as 'foreign cattle ') by the method of charging higher grazing rates in their case than in the case of cattle belonging to the residents of Madhya Pradesh, This levy of higher rates, the prescription of the route to be followed by foreign cattle while in transit through Madhya Pradesh and the stipulation that the cattle must leave Madhya Pradesh in 45 days are questioned in these writ petitions.
It is contended that the petitioner 's Fundamental Rights under article 14 and article 19 (e) (f ) and (g) and the right under article 301 are contravened.
On the other hand, it is contended on behalf of State of Madhya Pradesh that the rules prescribing grazing rates for 'foreign cattle; the route to be followed by 'foreign cattle ' while in transit through Madhya Pradesh and the period for which 'foreign cattle ' may remain within the boundaries of the State of Madhya Pradesh are made to regulate the influx and passage of 'foreign cattle ' into and through Madhya Pradesh with a view to prevent devastation and to protect the forest wealth of State.
We are unable to see any rational basis for the distinction made between owners of cattle belonging to Madhya Pradesh and owners of cattle belonging to other States (described as owners of 'foreign cattle ') and the levy of prohibited grazing rates on owners of the so called 'foreign cattle '.
Forests of Madhya Pradesh are not grazing grounds reserved for cattle belonging to residents of Madhya Pradesh only even as the towns and villages of Madhya Pradesh cannot be reserved for the residents of the original residents 128 of Madhya Pradesh only.
Accidents of birth and geography cannot A furnish the credentials for such discrimination and authorise prejudicial treatment in matters of this nature.
We do not say that geographical classification is never permissible.
For example, a preference given by a State to its residents ill the matter of admission to educational institutions maintained by the State from its revenues may be well justified.
But we are unable to see any such justification for the levy of virtually penal grazing charges in the case of owners of cattle belonging to other States.
The only attempt at justification is that the influx of 'foreign cattle ' is resulting in the destruction of the forest wealth of the State.
It is difficult to understand this justification.
If cattle belonging to residents of Madhya Pradesh are allowed to graze, will it not lead to the same damage as by the cattle belonging to persons of other States ? Surely, it cannot be that the Madhya Pradesh cattle are less destructive than the cattle belonging to persons of other States.
Further if the object was to prevent all cattle from grazing in protected forests, such grazing could have been banned as in the case of reserved forests.
Even in the case of the so called foreign cattle, cattle belonging to owners who are rich, may yet have their cattle graze in the Madhya Pradesh forests but not cattle belonging to poorer graziers.
Further, subject to reasonable restrictions which may be imposed in the interests of the general public, a citizen has the right under our Constitution to move freely throughout the territory of India, to reside and settle in any part of the territory of India and to practise any profession, or to carry on any occupation trade or business.
Graziers, be they of Madhya Pradesh, Gujarat or Rajashthan, therefore, have the right to pass and repass through the State of Madhya Pradesh with their cattle in the pursuit of their occupation.
The right is, of course, subject to reasonable restrictions in the interests of the general public.
We are enable to discover any reasonable basis for classifying graziers into those belonging to Madhya Pradesh and those belonging to other States; nor are we able to discover any acceptable reason behind the restriction imposed on graziers of other States by the heavier charge made on them.
We are convinced that their is no justification whatsoever for charging higher grazing rates for cattle belonging to persons of other States.
In regard to the prescription of the route along which the cattle have to be taken while in transit, however we find nothing wrong with it, since the object is obviously to prevent cattle straying and causing indiscriminate damage to forests.
We are, however, unable to justify the ceiling of 45 days in which cattle must pass through the State of Madhya Pradesh.
In the case of 129 cattle belonging to residents of Madhya Pradesh, the grazing rate is levied for a period of one year.
There is no reason why the charge A should be levied for 45 days in the case of persons belonging to other States.
The apprehension that cattle, if allowed to graze in the same place for a long time, may destroy the pasture and foliage altogether is taken care of by the other rules which prescribe that the cattle may not graze in the same grazing unit for more than a month.
In the circumstances, we quash the levy of higher grazing rates in the case of cattle belonging to persons of States other than Madhya Pradesh and direct the respondents to levy the same rates as they do in the case of cattle belonging to residents of Madhya Pradesh.
The limit of stay of 45 days is also declared unconstitutional.
The writ petitions are allowed accordingly.
The petitioners will get their costs.

Output:
With the purported object of inhibiting the influx of cattle belonging to owners of neighbouring States passing through the State of Madhya Pradesh, the State Government issued a notification under rule 7 of the M.P. Grazing Rates Rules, 1979 prescribing the route to be followed by such cattle (described as 'foreign cattle ') while in transit.
The notification also stipulated that 'foreign cattle should leave the State within a period of 45 days after the issue of the licence, that the owner should pay grazing charges of Rs. 10 per buffalo and Rs. 5 per goat or sheep for the period of transit.
A notification issued under rule 6, however, prescribed grazing charge of Re. 1 per year for each goat or sheep belonging to residents of the State of Madhya Pradesh.
No charge was prescribed in respect of buffaloes.
The petitioners, nomad graziers of Gujarat and Rajasthan who pass through the State of Madhya Pradesh with their cattle en routes to other neighbouring States, in their petitions under Article 32 of the Constitution contended that tile notification issued under rule 7 contravened their fundamental rights under Articles 14, 19 (1) (e), ( f ) and (g) and also their right under Article 301 of the Constitution and that therefore it was invalid.
Allowing the petitions, ^ HELD: There was no rational basis for the distinction made between owners of cattle belonging to Madhya Pradesh and owners of cattle belonging to other States and the levy of prohibited grazing rates on owners of 'foreign cattle '.
There was equally no justification in prescribing the ceiling of 45 days during which the cattle must pass through the State.
While in the case of cattle belonging to the residents of the State of Madhya Pradesh the levy was for one year there was no reason why the charge should be for 45 days in the case of cattle belonging to graziers of other States.
[127 G H, 128 A B] Under our Constitution a citizen has the right to move freely throughout the territory of India subject to reasonable restrictions.
To whichever State a grazier may belong, he has the right to pass and repass through the State of 125 Madhya Pradesh with his cattle in pursuit of his occupation.
Forests of the State are not the grazing grounds reserved for cattle belonging to residents of A that State only.
[128 D F] There was, however, nothing wrong in prescribing the route along which the cattle had to pass while in transit because its object was to prevent cattle straying and causing indiscriminate damage to forests.
[128 H]


Input:
iminal Appeal No. 5 of 1963.
Appeal by special leave from the judgment and order dated June 21, 1962 of the Gujarat High Court in Criminal Appeal No. 383 of 1961.
D. R. Prem and B. R. G. K. Achar, for the appellant.
M. V. Goswami, for the respondent.
April 7, 1962.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
On June 21, 1960 at 5 50 A.M. the Hi Inspector of Factories, Bhavnagar, visited Saurashtra Metal and Mechanical Works, Wadhwan City, which is a factory within the meaning of section 2(m)(1) of the .
He found even workmen working on a machine and on examining the notice of period of work for adult workers and the register of workers he found that three of the workmen belonged to a group which was expected to begin work from 7 A.M. He commenced proceedings under section 63 of the against the respondent Mr. Kansara Manilal Bhikhalal as the occupier/manager of the factory, after issuing notice to him to show cause.
He asked for enhanced penalty under section 94 of the because the said Mr. Manilal Bhikhalal was convicted on a previous occasion in three cases.
As three workmen were concerned three separate complaints were filed in the Court of the Judicial Magistrate, First Class, Wadhwan City.
The defence of the respondent was that he was not the occupier and manager of the factory.
It may be pointed out that one Mr. Dangi and the respondent are partners.
They have another factory at Dharangadhra and the defence was that Mr. Bhikhalal was manager at the Dharangadhra factory 658 and Mr. Dangi was manager at Wadhwan.
Another defence.
was that a machine had gone out of order the previous day and after it was repaired work was started a little earlier the: next day, because production had suffered and goods were required.
The Inspector, it was stated, was informed by a letter (Ext.11) written on the 20th about the change of timing though the letter, unfortunately, did not reach the Inspector till the 22nd.
It was admitted that this change in the hours of work was not notified and displayed as required by section 61(1).
It was urged that section 61(10) permitted a change to be made in the system of work in a factory and as this provision was fully complied with, there was no offence.
The Judicial Magistrate did not accept these defences.
According to him, Mr. Dangi 's letter (Ext. 15) showed that the respondent was the occupier and the manager of the factory at Wadhwan.
On the second defence the Magistrate was of the opinion that the hours of work could not be changed without the permission of the Inspector of Factories under sub section
(10) of section 61.
The contention on behalf of the respondent that this being the first change it was not necessary to wait for one week before making another change, was not accepted because it was held that the factory manager must always wait for one week before introducing a change.
The respondent was, therefore, convicted under section 63 of the in respect of three offences and under section 94, enhanced punishment was imposed upon him by ordering him to pay a fine of Rs. 100 in respect of each offence.
On appeal the Sessions Judge of Surendranagar ordered the acquittal of the respondent.
The learned Sessions Judge held that the second part of section 61(10) applied to a case of second or subsequent change and this being the first change it did not fall within the second part.
According to the Sessions Judge, it fell in the first part of the sub section and the change could not be said to have been effected in breach of that part since the Inspector of Factories was informed about the change.
The learned Sessions Judge was also of the opinion that section 117 of the protected the action because it was bonafide.
The conviction and sentence were accordingly set aside.
The State of Gujarat appealed against the acquittal but was unsuccessful.
A Division Bench of the High Court which heard the appeal agreed with the Sessions Judge in his interpretation of section 61 (10) and did not express any opinion on section 117 of the Act.
In this appeal filed by special leave of this Court these two points have again arisen for our consideration.
The scheme of the bearing upon the present matter may now be examined.
It is convenient to do so 659 in the reverse order.
Section 92 is a section providing generally for penalties and section 94 provides for enhanced penalty after previous conviction.
These sections prescribe penalties for contravention of any of the provisions of the Act or of any rule made or of any order in writing given thereunder.
The breach here is stated to be of section 63 of the Act which lays down that the hours of work must correspond with notice required to be displayed under section 61 and the register directed to be maintained under section 62.
It provides: "section 63.
Hours of work to correspond with notice under section 61 and register under section 62 No adult worker shall be required or allowed to work in any factory otherwise than in accordance with the notice of periods of work for adults displayed in the factory and the entries made beforehand against his name in the register of adult workers of the factory.
" Section 61 deals with the notice of periods of work for adults.
It is divided into 10 sub sections of which sub sections
(1), (2) and (10) alone are relevant here.
They are as fol lows: "61.
Notice of periods of work for adults. (1) There shall be displayed and correctly maintained in every factory in accordance with the provisions of sub section (2) of section 108, a notice of periods of work for adults showing clearly for every day the periods during which adult workers may be required to work.
(2) The periods shown in the notice required by subsection (1) shall be fixed beforehand in accordance with the following provisions of this section, and shall be such that workers working for those periods would not be working in contravention of any of the provisions of sections 51, 52, 54, 55, 56 and 58.
(10) Any proposed change in the system of work in any factory which will necessitate a change in the notice referred to in sub section (1) shall be notified to the Inspector in duplicate before the change is made, and except with the previous sanction of the Inspector, no such change shall be made until one week has elapsed since the last change." 660 Section 62 next provides that a register of adult workers shall be maintained in which will be shown (a) name of each adult workers in the factory; (b) the nature of his work; (c) the group, if any, in which he is included; (d) where his group works on shifts, the relay to which he is allotted and (e) such be prescribed.
Section 51 to which second sub section of section 61, already hours week; section 52 refers to weekly fixes a maximum of 9 hours a day interval for rest and prescribes that exceed 5 hours at one stretch; section 56 fixes generally that the period of work and rest should be spread over 10 1/2 hours and section 58 prohibits the overlapping of shifts.
The Sessions Judge and the High Court concurred in holding that the provisions of sub section
(10) were complied with and there was thus no offence under section 63.
They treated this as a change in the system of work in the factory necessitating a change in the notice referred to in sub G. (1) and held that as the change was notified to the Inspector before it was made there was nothing illegal in employing the three workers before their shift commenced.
They also held that as this was the first change there was no need to wait for a week or to obtain the previous sanction of the Inspector as required by the latter part of the tenth sub section.
With due respect to the High Court, we do not agree that this sort of case is contemplated by the tenth :sub section.
That sub section speaks of "change in the system of work in any factory which will necessitate a change in the notice" and these words refer not to a departure from the notice but to a change in the system, a change which would require the notice to be recast.
The notice shows "the periods during which adult workers may be required to work" and these words are descriptive of the scheme of the employment of labour in the factory but are not apt to contemplate the time of employment for each individual worker.
That can only be found by referring to the register which goes with the notice.
Sub section
(1) makes no mention of the change in the register but of the change in the notice and thereby indicates that the change which is contemplated is an overall change affecting a whole group and not an individual worker.
The latter part of the sub section also points in the same direction because it implies that such changes should not be frequent and if the change is for the second time it should not be made until one week has elapsed since the last change.
This cannot possibly refer to a casual change in the hours of work of an individual worker.
661 The learned counsel sought to justify the action by referring to section 59 which provides that extra wages for over time shall be paid.
No such claim was made earlier in this case and justification was sought only from the provisions of sub section
(10) of section 61 and section 117 of the Act.
Section 59 cannot be considered in isolation: It has to be read with section 64, where the State Government has been given the power to make exempting rules '.
Under those rules a departure from the provisions of sections 51, 52, 55 and 56 can be made but only in accordance with the rules so framed; as for example, overtime work may be taken from workers engaged on urgent repairs in spite of the provisions of sections 51, 54, 55 and 56, but must be in accordance with rule 91 and the urgency which is referred to in this section and the rule is 'an urgency relating to the factory and not an urgency felt by the constituents of the factory '.
A departure from the hours of work as laid down in section 61(2) can only be made in those cases in which the exempting provisions of the rules cover the case and not otherwise.
It would, therefore, appear that the offence which was committed in the case was the employment of workers contrary to the notice displayed under section 61(1) without any justi fication by reason of any exempting provision.
The respon dent was not saved from the operation of section 63, which is peremptory, by reason of anything contained in sub section
(10) and the sending of the letter to the Inspector of Factories was therefore mis conceived.
It was contended before us that the respondent was not the occupier/manager of the factory and, in any event, section 117 of the Act protected him because he was not present there and his action was bonafide.
A: , to the first part of this argument it is sufficient to say that the Magistrate found that he was the occupier and manager.
The letter of Mr. Dangi (Ext. 15) quite clearly establishes this.
The argument under, section 117 of the Act requires a more detailed consideration.
That section reads as follows: "17.
Protection to persons acting under this Act.
No suit, prosecution or other legal proceeding.
shall lie against any person for anything which is in good faith done or intended to be done under this Act.
" It is argued by Mr. M. V. Goswami on the authority of cases about to be mentioned that this section gives protection against prosecution in respect of anything which is done in good faith under the Act.
He referred us to two decisions of 662 Thomas, C. J. in Ranjit Singh vs Emperor(1) and Ranjit Singh vs Emperor,(2) in which the learned Chief Justice observes that the language of section 117 is not limited to the inspecting staff but is wide enough to include occupiers, managers, foremen, workers etc.
Mr. Goswami also refers to two decisions of the Andhra Pradesh High Court in Public Prosecutor vs Mangaldas Thakker(3) and In re.
P. Lakshmaiah Naidu(1) in which the same view has been expressed.
Mr. D. R. Prem on behalf of the State of Gujarat relies on The Public Prosecutor vs Vattem Venkatramayya(5) and Provincial Government, C.P. and Berar vs Seth Chapsi Dhanji Oswal Bhate and Anr(6).
Reference was also made to Superinte dent and Remembrancer of Legal Affairs, Bengal vs H. E. Watson(7).
It is not necessary to refer to the lines of reasoning adopted in these cases.
The language of this protecting clause is not limited to officers but is made wide to include "any person".
It thus gives protection not only to an officer doing or intending to do something in pursuance or execution of this Act but also to "any person".
But the critical words are "any thing * * * done or intended to be done" under the Act.
The protection conferred can only be claimed by a person who can plead that he was required to do or omit to do something under the Act or that he intended to comply with any of its provisions.
It cannot confer immunity in respect of actions which are not done under the Act but are done contrary to it.
Even assuming that an act includes an omission as stated in the General Clauses Act, the omission also must be one which is enjoined by the Act.
It is not sufficient to ,say that the act was honest.
That would bring it only within the words "good faith".
It is necessary further to establish that what is complained of is something which the Act requires should be done or should be omitted to be done.
There must be a compliance or an intended compliance with a provision of the Act, before the protection can be claimed.
The section cannot cover a case of a breach or an intended breach of the Act however honest the conduct otherwise.
In this connection it is necessary to point out, as was done in the Nagpur case above referred to, that the occupier and manager are exempted from liability in certain cases men tioned in section 101.
Where an occupier or a manager is charged (1) A.I.R. (1943) Oudh 308.
(2) A.I.R. (1943) Oudh 311.
(3) A.I.R. (1958) Andh.
Pra. 79.
(4) I.L.R. (5) A.I.R. (1963) Andh.
Pra. 106).
(6) I.L.R. (1938) Nag. 408.
(7) 663 with an offence he is entitled to make a complaint in his own turn against any person who was the actual offender and on proof of the commission of the offence by such person the occupier or the manager is absolved from liability.
This shows that compliance with the peremptory provisions of the Act is essential and unless the occupier or the manager brings the real offender to book he must bear the responsibility.
Such a provision largely excludes the operation of section 117 in respect of persons guilty of a breach of the provisions of the Act.
It is not necessary that means rea must always be established as has been said in some of the cases above referred to.
The responsibility exists without a guilty mind.
An adequate safeguard, however, exists in section 101 analysed above and the occupier and manager can save themselves if they prove that they are not the real offenders but who, in fact, No such defence was offered here.
For these reasons we are of the opinion that the respondent is not saved by section 117.
We, accordingly, set aside his, acquittal and convict him under section 63 read with section 94 of the .
He is ,sentenced to pay a fine of Rs. 501/ in respect of each of the offences, or in default to undergo 15 days ' simple imprisonment.

Output:
On inspection three of the workmen were found working in a factory before their shift commenced.
It was stated that the Inspector of Factories was informed by a letter written a day prior to this inspection about the change of the timing though the letter did not reach the Inspector till the day after the inspection.
This change in the hours of work was not notified and displayed as required by section 61(1) of the .
The respondent as the occupied/manager of the factory was convicted under section 63 of the Act.
On appeal, the Sessions Judge acquitted the respondent holding that the second part of section 61(10) of the Act applied to a case of second or subsequent change in the system of work in a factory and this being the first change there was no need to wait for a week or to obtain the previous sanction of the Inspector as required by the later part of section 61(101), and further section 117 of the Act protected the action because it was bonafide.
The State appealed to the High Court which agreed with the Sessions Judge in his interpretation of section 61(10) but expressed no opinion on section 117 of the Act and it dismissed the appeal.
On appeal by special leave: Held: (i) The respondent was not saved from the opera tion of section 63 which is peremptory, by reason of anything contained in section 61(10) and the sending of the letter to the Inspector of Factories was therefore misconceived.
The words "change in the system of work in any factory which will necessitate a change in the notice" in section 61(10) refer not to departure from the notice but to a change in the system, a change which would require the notice to be recast.
The notice shows "the period during which adult workers may be required to work" and these words are descriptive of the scheme of employment of labour in the factory but are not apt to contemplate the time of employment for each individual worker.
That can only be found by referring to the register which goes with the notice.
Sub section (1) makes no mention of the change in the register but of the change in the notice and thereby indicates that the change which is contemplated is an over all change affective to a whole group and not an individual worker.
The latter part of the sub section also points in the same direction because it implies that such changes should not be frequent and if the change is for the second time it should not be made until one week has.
elapsed since the last change.
(ii) The language of section 117 of the Act is not limited to officers but is made wide to include "any person".
The protection conferred can only be claimed by a person who can plead that he was required to do or omit to do something under the Act or that he intended to comply with any of its provisions.
It cannot confer immunity in respect of actions which are not done under the Act but are done contrary to it.
657 (iii) The occupier and manager, are exempted from liabi lity in certain cases mentioned in section 101.
Where an occupier or a manager is charged with an offence he is entitled to make a complaint in his own turn against any person who was the actual offender and on such proof the occupier or the manager is a solved from liability.
This shows that compliance with the peremptory provisions of the Act is essential and unless the occupier or the manager brings the real offender to book he must bear the responsibility.
It is not necessary that means rea must always be established.
The responsibility exists without a guilty mind.
Ranjit Singh vs Emperor, A.I.R. (1943) Oudh 308, Ranjit Singh vs Emperor, A.I.R. (1943) Oudh 311, Public Prosecutor vs Mangaldas Thakkar, A.I.R. , In re P. Lakshmaiah Naidu, I.L.R. , Public Prosecutor vs Vattem Venkatramayya, A.I.R. 1963.
Pra. 106, Provincial Government C.P. and Berar vs Seth Chapsi Dhanji Oswal Bhate and Anr.
I.L.R. and Superintendent and Remembrancer of Legal Affairs, Bengal vs H. E. Watson, , referred to.


Input:
TION: Criminal Appeal No. 672 of 1989.
From the Judgment and Order dated 16.2.1988 of the Madras High Court in Crl.
Petition No. 12389 of 1987.
R. Mohan and R.A. Perumal for the Appellant.
R.K. Jain, Mrs. Aruna Mathur and A. Mariarputham for the Respondents.
The Judgment of the Court was delivered by M. FATHIMA BEEVI, J.
Special Leave granted.
The appellant married the first respondent on 29.4.
They lived together until 1982 and have two children.
They separated and the legal battle commenced in 1983.
The first respondent moved the City Civil Court for divorce.
The appellant instituted criminal complaint in the court of the Metropolitan Magistrate.
The complaint was taken cognizance of for offences under Sections 494, 496, 498 A, 112, 114, 120, 120 B and 34 IPC against the respondents.
It was al leged that the first respondent married the second respond ent while the proceedings for decree of divorce were still pending, the marriage was performed secretly in the presence of respondent Nos. 3 to 6.
On the application of the first respondent the High Court by the impugned order quashed the proceedings before the Metropolitan Magistrate.
Hence the appeal.
Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent powers to prevent abuse of the process of Court.
In proceedings instituted on complaint exercise of the inherent power to quash the pro ceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive.
If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under Section 482.
It is not, however, necessary that there should be a meticu lous analysis of the case, before the trial to find 167 out whether the case would end in conviction or not.
The complaint has to be read as a whole.
If it appears on a consideration of the allegations, in the light of the state ment on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide, frivolous or vexa tious.
in that event there would be no justification for interference by the High Court.
The High Court without proper application of the princi ples that have been laid down by this Court in Sharda Prasad Sinha vs State of Bihar, ; ; Trilok Singh and Others vs Satya Deo Tripathi, [1980] 86 CRL.
LJ 882 AIR 1979 SC 850 and Municipal Corporation of Delhi vs Purshotam Dass Jhunjunwala and Others, ; proceeded to analyse the case of the complainant in the light of all the probabilities in order to determine whether a conviction would be sustainable and on such premises arrived at a conclusion that the proceedings are to be quashed against all the respondents.
The High Court was clearly in error in assessing the material before it and concluding that the complaint cannot be proceeded with.
We find there are spe cific allegations in the complaint disclosing the ingredi ents of the offence taken cognizance of.
It is for the complainant to substantiate the allegations by evidence at a later stage.
In the absence of circumstances to hold prima facie that the complaint is frivolous when the complaint does disclose the commission of an offence there is no justification for the High Court to interfere.
We, therefore, allow the appeal, set aside the impugned order and direct that the proceedings before the Magistrate shall be restored and disposed of in accordance with the law.
P.S.S. Appeal allowed.

Output:
The criminal complaint instituted by the appellant was taken cognizance of by the Magistrate for offences under sections 494, 496,498 A, 112, 114, 120, 120 B and 34 IPC.
It was alleged that the first respondent had married the second respondent while the proceedings for decree of divorce were still pending, and that the marriage was performed secretly in the presence of respondent Nos. 3 to 6.
The High Court, however, on the application of the first respondent quashed the proceedings before the Magistrate.
Allowing the appeal by special leave, HELD: The High Court was in error in assessing the material before it and concluding that the complaint cannot be proceeded with.
[167C D] In proceedings instituted on complaint exercise of the inherent power under section 482 of the Code of Criminal Proce dure by the High Court to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive.
It is not necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not.
The complaint has to be read as a whole.
[166G; 167A] In the instant case, there were specific allegations in the complaint disclosing the ingredients of the offence taken cognizance of.
It was for the complainant to substan tiate the allegations by evidence at a later stage.
In the absence of circumstances to hold prima facie that the com plaint was frivolous there was no jurisdiction for the High Court to interfere.
[167D E] Sharda Prasad Sinha vs State of Bihar, ; ; Trilok 166 Singh & Ors.
vs Satya Deo Tripathi, AIR 1979 SC 850 and Municipal Corporation of Delhi vs Purshotam Dass Jhunjunwala


Input:
Appeal No. 408 of 1957.
Appeal by Special Leave from the Judgment and Order dated the 28th September, 1955, of the former Bombay High Court in Income tax Reference No. 5 of 1955.
Sanat P. Mehta, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellant.
A. N. Kripal, R. H. Dhebar and D. Gupta, for the respondent.
October 18.
The Judgment of the Court was delivered by SHAH J.
To the appellant who was a non resident for the purposes of the Indian Income Tax Act, 1922, had accrued in the assessment years 1943 44, 194445, 1946 47 and 1947 48 certain dividend income within the taxable territory of British India, but the appellant did not submit returns of his income for those assessment years.
In exercise of his powers under section 34 of the Indian Income Tax Act, 1922, the Income Tax Officer, Bombay City, served upon the appellant notices under section 34 read with s, 22(2) of the Act for assessment of tax in respect of those years.
The notice for the year 1943 44 was served on the appellant on March 27, 1952, for the year 1944 45 on February 16, 1953, for the year 1946 47 on April 4, 1951 and for the year 1947 48 on April 2, 1952.
The Income Tax Officer completed the assessments in respect of the years 1943 44, 1944 45 and 1947 48 on May 6, 1953 and for the year 1946 47 on March 19, 1952.
The orders of assessment were confirmed by the Appellate Assistant Commissioner and by the Income Tax Appellate Tribunal.
At the instance of 37 the appellant, the Income Tax Appellate Tribunal drew up a statement of the case under section 66(1) of the Income Tax Act and submitted to the High Court of Judicature at Bombay the following two questions: (I).
Whether the notices issued under section 22(2) of the Act read with section 34 of the Act for the assessment years 1943 44, 1944 45, 1946 47 and 1947 48 were served after the period of limitation prescribed by section 34 of the Act? (2) If the answer to Question No. 1 is in the affirmative, whether the assessments for the years in question were invalid in law? The High Court answered the first question in the negative and observed that on that answer, the second question " did not arise ".
With special leave under article 136 of the Constitution, this appeal is preferred by the appellant against the order of the High Court.
The only question which falls to be determined in this appeal is whether the proceedings for assessment were commenced within the period of limitation prescribed for serving notice of assessment under section 34(1)(a) of the Act.
At the material time, by section 34 (1)(a), the Income Tax Officer was invested with power amongst others to serve at any time within eight years from the end of any year of assessment notice of assessment if he had reason to believe that income, profits or gains had escaped assessment by reason of omission or failure on the part of the assessee to make a return of his income under section 22 for that year, or to disclose fully and truly all material facts necessary for his assessment of that year.
In those cases where the Income Tax Officer had in consequence of information in his possession reason to believe that income, profits or gains had escaped assessment even though there was no omission or failure as mentioned in el.
(a), he could under cl.
(b) within four years from the end of the year of assessment serve a notice of assessment.
Admittedly, the notices issued by the Income Tax Officer for the years in question were issued within eight years from the end of the years of assessment and if el.
(1)(a) of section 34 applied, the assessment was not barred by the law of limitation.
38 But the appellant contended that the notices for assessment were, even though he had not made a return of his income for the years in question, governed not by cl.
(1)(a) of section 34, but by cl.
(1)(b) of section 34.
He contended that being a resident outside the taxable territory in the years of , assessment, a general notice under section 22(1) did not give rise to a liability to submit a return, and his inaction did not amount to omission or failure to submit a return, inviting the applicability of section 34(1)(a).
He submitted that omission or failure to make a return can only arise qua a non resident, if no return is filed after service of an individual notice under section 22(2).
In other words, the plea is that a notice under section 22(1) imposes an obligation upon persons resident within the taxable territory and not upon non residents, and support for this argument is sought to be obtained from section 1 sub section
(2) which extended the Income Tax Act at the material time to British India.
The expression " every person whose total income during the previous year exceeded the maximum amount which is not chargeable to income tax " in section 22(1) includes all persons who are liable to pay tax and there is nothing in the section or in its context which exempts non residents from liability to submit a return pursuant to a notice thereunder.
The fact that a non resident assessee may not come to know of the general notice issued under section 22(1) is not a ground for not giving effect to the plain words used in the section.
In terms, the clause read with r. 18 requires every person who has taxable income to submit his return, and if he fails to do so, under section 34 of the Act the Income Tax Officer may commence proceedings for assessment within the period prescribed by cl.
(1)(a).
Section 34(1)(b) applies only to those cases where there is no omission or failure to make a return of the income or to make a full and true disclosure of facts material to the assessment.
To the appellant though non resident income bad admittedly accrued in the taxable territory and that income exceeded the maximum amount not chargeable to income tax.
, The appellant not having submitted a return in pursuance of the notice issued under section 221 the Income Tax 39 Officer was competent under section 34(1)(a) to issue notice at any time within eight years of the end of the year of assessment for assessing him to tax.
Once a notice is given by publication in the press and in the prescribed manner under section 22(1), every person whose Th.
income exceeds the maximum amount exempt from tax is obliged to submit a return and if he does not do so, it will be deemed that there was omission on his part to a make a return within the meaning of section 34(1)(a).
There is no warrant for the submission that section 22(1) applies to residents only and that an obligation to make a return on the part of a nonresident can only arise if a notice under sub section
(2) is served.
Under sub section
(2) it is open to the Income Tax Officer to serve a special notice upon any person requiring him to furnish a return in the prescribed form, but that provision does not derogate from the liability arising under sub section
(1) to submit a return.
The Income Tax Act extends by section 1(2) to the taxable territory and not beyond; but within that territory, the Income Tax Officer has power to tax income which accrues, arises or is received, and that is not disputed by the appellant.
If power to tax be granted, it is difficult to appreciate the ground on which the plea that the general provision imposing liability upon persons receiving taxable income is subject to an unexpressed limitation that it is to apply only to residents and not to non residents.
The submission that a person liable to pay tax but resident outside the taxable territory must be served with a special notice under section 22(2) before his inaction in the matter of making a return may be deemed omission within the meaning of section 34(1) is without force.
There is no such express provision made by the statute and none can be implied from the context.
The High Court was therefore right in holding that the proceedings for assessment were properly commenced within the period of limitation prescribed by section 34(1)(a) from the close of the year of assessment.
The appeal fails and is dismissed with costs.
Appeal dismissed.

Output:
The appellant, a non resident for the purposes of the Indian Income tax Act, did not submit returns of certain dividend income accruing to him within the taxable territory.
The Income tax Officer served upon him notices under section 34 read with section 22(2) of the Act for assessment of tax in respect of those years.
The notices in question were issued within eight years from the end of the years of assessment and were within the period prescribed by section 34(i)(a).
The appellant contended that notices for assessment were governed by cl.
(i)(b) of section 34 and not by cl.
(i)(a), even though the appellant had not made a return of his income for the years in question as a general notice under section 22(1) did not give rise to a liability to submit a return and his inaction did not amount to omission or failure to submit a return as he was a non resident, and the assessment proceedings were barred by limitation.
Held, that the expression "every person " in section 22 (1) of the Indian Income tax Act, 1922, includes all persons who are liable to pay tax and non residents are not exempted from liability to submit a return pursuant to the general notice thereunder.
Once a notice is given by publication in the prescribed manner under section 22(i), every person whether resident or non resident whose income exceeds the maximum amount exempt from tax is obliged to submit a return and if he does not do so, 36 it will be deemed that there was omission on his part to make a return within the meaning of section 34(i)(a) of the Indian Income tax Act.
Section 34(1)(b) applied only to those cases where there was no omission or failure to make a return of the income or to make a full and true disclosure of facts material to the assessment.
In the instant case the proceedings for assessment were pro perly commenced within the period of limitation prescribed by section 34(1)(a).