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minal Appeal No. 117 of 1958.
Appeal by special leave from the judgment and order dated September 13, 1957, of the Bombay High Court in Criminal Petition Application No. 834 of 1957, arising out of the judgment and order dated April 30, 1957, of the Presidency Magistrate, IV Class, Girgaon, Bombay, in Case No. 6/1 & R of 1956.
H. M. Choksi, Rajni Patel, B. K. B. Naidu and I. N. Shroff, for the appellant.
Janardan Sharma, for respondent No. 1.
Purshottam Trikamdas, H. R. Khanna, D. Gupta and R. H. Dhebar, for respondent No. 2. 1960, May 6.
The Judgment of the Court was delivered by 3 section K. DAS, J.
This is an unfortunate case in which a complaint filed in the Court of the Presidency Magistrate, Bombay, on October 31, 1956, by one Dattatraya Dulaji Ghadigaonkar, respondent herein, has to be finally disposed of in the year 1960 in circumstances which we shall state at once.
On June 3, 1956, in the evening, a public meeting was held at a place called Chowpatty in Bombay which was to be addressed by the Prime Minister of India.
The meeting was called in connexion with an agitation which was then going on for the reorganisation of the State of Bombay.
There was considerable disturbance at the meeting as a result whereof it had to be dispersed, and large crowds of people began to wander about in various localities around Chowpatty including an area round Charni Road Station.
The case of the complaining respondent was that at about 8 p. m. his younger brother Sitaram was crossing Queen 's Road Dear a building called Laud Mansion.
At that time there was a large crowd on the road and members of that crowd were stopping vehicles passing by that road.
One taxi cab which had come from the direction of the Opera House and was going towards Churchgate was already stopped.
Sitaram was then accompanied by Sashikant Kamtekar and Nand Kumar Vagal.
When these three had crossed the road, they heard the reports of revolver shots and on looking back they found that a person called Bhayya was injured by one of the shots and fell down on the footpath.
Sitaram and his friends went to help Bhayya; at this stage, another shot was fired by one of the occupants of a blue car which was near the taxi cab referred to earlier.
Sitaram was hit on his chest, and the bullet having entered the chest cavity injured the right ventricle of the heart.
Sitaram was removed to the G. T. Hospital but died before medical assistance could be given.
Dr. H. section Metha, Police Surgeon, who made a postmortem examination of the dead body, opined that Sitaram died of shock and hemorrhage as a result of the gun shot wound he had received.
The doctor further said that the charring round the wound indicated that the shot had been fired from a distance of 2 to 18 inches only. 4 The case of the respondent was that Vadilal Panchal, appellant before us, fired the shot from the blue car.
The occupants of the car were K. K. Shah, advocate, his son Vinay, and one Ratilal Sanghvi on the back seat, and the appellant and chauffeur Mohiddin on the front seat.
K. K. Shah was mentioned in the complaint as one of the complainant 's witnesses.
He was examined and said that after the meeting was over, he and his companions were returning in his car to his house.
Because of the trouble, the car travelled by a longer route and when it reached Queen 's Road, there were large crowds on that road who were pelting stones.
shouting slogans and committing other acts of violence; a public bus was burnt, and a taxi cab which was proceeding ahead of K. K. Shah 's car was stopped.
Some three or four hundred people surrounded his car, pelted stones and shouted " maro " "maro".
Some of them attempted to drag out Ratilal Sanghvi who occupied a corner seat; some caught hold of the appellant by his neck and hair and wanted to drag him out of the car.
The appellant then opened fire with his revolver.
The rioters then held back, and the way was clear for the car to pass.
The car then drove away and after some time K. K. Shah and the appellant went to Gamdevi Police Station where the latter made a report of what had happened.
The appellant was sent to Nair Hospital where he was medically treated and allowed to go.
The Coroner of Bombay held an inquest into the death of Sitaram at which K. K. Shah, Sashikant Kamtekar and several other witnesses were examined.
The Coroner 's Jury returned a verdict that Sitaram died of the gunshot wound caused by a bullet fired by the appellant " under such circumstances as would render the firing to be in exercise of the right of private defence and as such justified ".
This verdict was returned on October 16, 1956.
Sometime earlier, on July 3, 1956, to be precise, the complaining respondent had made an enquiry through his advocate from the Commissioner of Police, Bombay, as to whether the appellant had been arrested: the reply received was that the enquiries made by the police did not 5 reveal any offence having been committed by the appellant and the police proposed to take no action.
On October 31, 1956, the respondent filed his complaint.
The learned Presidency Magistrate to whom,, the complaint was made referred it to the Superintendent of Police, C. 1. D., for enquiry and report.
Presumably, he acted under section 202 of the Code of Criminal Procedure.
On November 15, 1956, the Superintendent of Police submitted the report of his Inspector in which it was stated: "From the exhaustive enquiries made immediately after the incident it was disclosed that Shri Vadilal Panchal was justified in resorting to firearms in self defence of himself and the other occupants of the motor car ".
On January 17, 1957, the learned Magistrate gave the respondent another opportunity to examine his witnesses before the enquiring officer, because by reason of a revision application made to the High Court earlier against the order referring the case to the police for enquiry, the respondent did not produce his witnesses before the enquiring officer.
The enquiring officer then examined all the witnesses and submitted his report on March 12, 1957.
This time also the enquiring officer said : " From their statements and other evidence on record, it is clear that Shri Wadilal Panchal opened fire in the exercise of his, right of private defence, which verdict the learned Coroner 's Jury also brought after a protracted hearing of the Inquest Proceedings.
Copies of all statements recorded by me, are attached for reference ".
On April 30, 1957, the learned Presidency Magistrate considered the report of the enquiring officer in great detail with reference to the statements of all the witnesses and said: " The Police have recorded in detail the statements of all witnesses produced by the complainant as well as of all the occupants of the car.
There is, therefore, material on record showing fully whether the circumstances existed making out the right of private defence available to the accused.
The fact 6 whether the case falls within one of exceptions or not can be established on the evidence of the witnesses produced by the prosecution itself though of course the burden of proof lies on the accused.
From the statements, recorded by the Police in this case and from the surrounding circumstances of the case, I have come to the definite conclusion that the report of the police stating that the shot was fired by the accused in self defence is true.
As I have stated the statement of the police surgeon conclusively supports the conclusion.
I have come to the conclusion that the state ments of the four eye witnesses brought by the complainant are false.
These eye witnesses are not credible witnesses.
It will be harassment to the accused and waste of public time if any process is issued in this case ".
Accordingly, he dismissed the complaint under section 203, Code of Criminal Procedure.
Against this order of dismissal the respondent complainant moved the High Court.
The High Court set aside the order of dismissal and directed the learned Presidency Magistrate to issue process against the appellant and deal with the case in accordance with law, on a ground which the High Court expressed in the following words: " Now, in the case before us, causing of the death of Sitaram being indisputable, if it was found as the petitioner alleges that it was the shot fired by the res pondent that caused the death of Sitaram, the accused ,would have to establish the necessary ingredients of the right of private defence as laid down in section 96 and onwards of the Penal Code.
We do not find anything in any of the sections in Chapter XVI to show that such an exception can be held to be established from the mere report of the police.
That, in our view, is contrary to the provisions of section 105 of the Indian Evidence Act which are mandatory provisions.
There is nothing in section 202 or section 203 of the Criminal Procedure Code which abrogates the rule as to the presumption laid down in section 105 of the Evidence Act and the mode of proof of exception laid down in imperative language in that section.
7 In these circumstances and for the reasons aforesaid, we find that this was not a case in which it was proper for the learned Magistrate to dismiss the complaint under section 203, there being no evidence before the learned Magistrate as and by way of proof to establish the exception of the right of private defence pleaded by the respondent The appellant then moved this Court and obtained special leave to appeal from the order of the High Court dated September 13,1957.
The short question before us is was the High Court right in its view that when a Magistrate directs an enquiry under section 202 of the Code of Criminal Procedure for ascertaining the truth or falsehood of a complaint and receives a report from the enquiring officer supporting a plea of self defence made by the person complained against, it is not open to him to hold that the plea is correct on the basis of the report and the statements of witnesses recorded by the enquiring officer ? Must he, as a matter of law, issue process in such a case and leave the person complained against to establish his plea of self defence at the trial ? It may be pointed out here that the High Court itself recognised that it would not be correct to lay down a proposition in absolute terms that whenever a defence under any of the exceptions in the Indian Penal Code is pleaded by the person complained against, the Magistrate would not be justified in dismissing the complaint and must issue process.
Said the High Court: " As we have already observed, if there is a complaint, which itself discloses a complete defence under any of the exceptions, it might be a case where a Magistrate would be justified in dismissing such a complaint finding that there was no sufficient ground to proceed with the case.
" We are of the view that the High Court was in error in holding in this case that as a matter of law, it was not open to the learned Presidency Magistrate to come to the conclusion that on the materials before him no offence had been made out and there was no sufficient ground for proceeding further on the complaint.
8 The relevant sections bearing on the question are sections 200, 202 and 203.
" section 200.
A Magistrate taking cognizance of an Offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath, and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided as follows: (a) . . . . . (aa) . . . . . (b) where the Magistrate is a Presidency Magistrate, such examination may be on oath or not as the Magistrate in each case thinks fit, and where the complaint is made in writing need not be reduced to writing; but the Magistrate may, if he thinks fit, before the matter of the complaint is brought before him, require it to be reduced to writing ; (c) . . . . . . section 202(1).
Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance, or which has been transferred to him under section 192, may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against, and either inquire into the case himself or, if he is a Magistrate other that a Magistrate of the third class, direct an inquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint.
Provided that . . . (it is unnecessary to read the proviso.
(2) If any inquiry or investigation under this section is made by a person not being a Magistrate or a police officer, such person shall exercise all the powers conferred by this Code on an officer in charge of a police station, except that he shall not have power to arrest without warrant.
(2A) Any Magistrate inquiring into a case under 9 this section may, if he thinks fit, take evidence of wit nesses on oath.
(3) This section applies also to the police in the towns of Calcutta and Bombay.
section 203.
The Magistrate before whom a complaint is made or to whom it has been transferred, may dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the witnesses and the result of the investigation or inquiry (if any) under section 202, there is in his judgment no sufficient ground for proceeding.
In such cases he shall briefly record his reasons for so doing ".
The general scheme of the aforesaid sections is quite clear.
Section 200 says inter alia what a Magistrate taking cognisance of an offence on complaint shall do on receipt of such a complaint.
Section 202 says that the Magistrate may, if he thinks fit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against and direct an inquiry for the purpose of ascertaining the truth or falsehood of the complaint; in other words, the scope of an inquiry under the section is limited to finding out the truth or falsehood of the complaint in order, to determine the question of the issue of process.
The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned.
The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage; for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued and he is put on trial.
Section 203, be it noted, consists of two parts: the first part indicates what are the materials which the Magistrate must consider, and the second part says that if after considering those materials there is in his judgment no sufficient ground for proceeding, he may dismiss the complaint.
Section 204 says that if 10 in the opinion of the Magistrate there is sufficient ground for proceeding, he shall take steps for the issue of necessary process.
Now, in the case before us it is not contended that the learned Presidency Magistrate failed to consider the materials which he had to consider, before passing his order under section 203 of the Code of Criminal Procedure.
As a matter of fact the learned Magistrate fully, fairly and impartially considered these materials.
What is contended on behalf of the respondent complainant is that as a matter of law it was not open to the learned Magistrate to accept the plea of right of self defence at a stage when all that he had to determine was whether a process should issue or not against the appellant.
We are unable to accept this contention as correct.
It is manifestly clear from the provisions of section 203 that the judgment which the Magistrate has to form must be based on the statements of the complainant and his witnesses and the result of the investigation or inquiry.
The section itself makes that clear, and it is not necessary to refer to authorities in support thereof.
But the judgment which the Magistrate has to form is whether or not there is sufficient ground for proceeding.
This does not mean that the Magistrate is bound to accept the result of the inquiry or investigation or that he must accept any plea that is set up on behalf of the person complained against.
The Magistrate must apply his judicial mind to the materials on which he has to form his judgment.
In arriving at his judgment he is not fettered in any way except by judicial considerations; he is not bound to accept what the inquiring officer says, nor is he precluded from accepting a plea based on an exception, provided always there are satis factory and reliable materials on which he can base his judgment as to whether there is sufficient ground for proceeding on the complaint or not.
If the Magistrate has not misdirected himself as to the scope of an enquiry under section 202 and has applied his mind judicially to the materials before him, we think that it would be erroneous in law to hold that a plea based on an exception can never be accepted by him in 11 arriving at his judgment.
What bearing such a plea has on the case of the complainant and his witnesses, to what extent they are falsified by the evidence of other witnesses all these are questions which must be answered with reference to the facts of each case.
No universal rule can be laid in respect of such questions.
In support of its view the High Court has relied on some of its earlier decisions: Emperor vs Dhondu Bapu (1); Emperor vs Finan (2) and Tulsidas vs Billimoria (3).
We do not think that any of the aforesaid decisions lays down any such proposition in absolute terms as is contended for on behalf of the respondent.
In Emperor vs Dhondu Bapu (1) a complaint charging defamation was dismissed by the Magistrate under section 203 without taking any evidence, on the ground that the accused was protected by section 499, exception 8.
It was held that the order of dismissal was bad.
Patkar, J., significantly observed: " If the Magistrate in this case had taken evidence on behalf of the prosecution and on behalf of the accused, and passed a proper order for discharge, the order of the District Magistrate ordering a further enquiry without giving reasons might have stood on a different footing.
We do not think that, under the circumstances of this case, there are adequate grounds for interfering with the order of the District Magistrate.
" In Emperor vs Finan (2) the accused did not dispute the correctness of the statements made by the complainant, but in justification pleaded the order passed by his superior officer and claimed protection under sections 76 and 79 of the Indian Penal Code.
It is worthy of note that the order of the superior officer was not produced, but that officer very improperly wrote a letter to the Magistrate saying that he bad given such an order.
In these circumstances, the same learned Judge who decided the earlier case observed: "It was, therefore, incumbent on the Magistrate to investigate the complaint and to find out whether (1) ,715.
(2) (1931) 33 Bom.
L.R. 1182.
(3) 12 the allegation of the accused that he was protected by sections 76 and 79 of the Indian Penal Code was made out by legal evidence before him.
" The facts in Tulsidas vs Billimoria (1) were different, and the question there considered was whether a member of the Bar in India had absolute privilege.
That decision has very little bearing on the question now before us.
Our attention has also been drawn to a decision of the Lahore High Court where the facts were somewhat similar: Gulab Khan, deceased, through Karam Khan vs Gulam Muhammad Khan and Others (2).
In that case also the person complained against took the plea of self defence, which was accepted.
In the High Court an objection was taken to the procedure adopted and it was argued that the order of discharge should be set aside.
In dealing with that argument Broadway, J., said : " Now a Magistrate is empowered to hold an enquiry into a complaint of an offence in order to ascertain whether there is sufficient foundation for it to issue process against the person or persons complained against.
In the present case the Magistrate clearly acted in the exercise of these powers under section 202, Criminal Procedure Code.
He allowed the complainant to produce such evidence in support of his com plaint as he wished to produce, and after a consideration of that evidence came to the conclusion that that evidence was so wholly worthy (unworthy ?) of credence as to warrant his taking no further action in the matter." Therefore, none of the aforesaid decisions lay down as an absolute proposition that a plea of self defence can in no event be considered by the Magistrate in dealing with a complaint under the provisions of sections 200, 202 and 203 of the Code of Criminal Procedure.
On the facts, there is very little to be said.
Learned Counsel for the State of Bombay supported the order of the learned Magistrate and pointed out that even on the narrow view taken by the High Court, a view (1) (2) A.I.R. 1927 Lah 30 13 to which he did not, however, subscribe, the learned Magistrate rightly held that there was no sufficient ground for proceeding; because the earlier version of some of the witnesses for the complainant itself showed that there was a riotous mob on the road which attacked cars, burnt a public bus, pelted stones, etc., which was quite inconsistent with their later version that Sitaram and his companions were quietly crossing the road and a shot was fired from a passing or moving car.
There was overwhelming material to show Chat K. K. Shah 's car was surrounded by the mob and some of the rioters tried to drag out and attack the appellant.
K. K. Shah was one of the witnesses mentioned by the complainant and so also two of the Inspectors of Police.
Their evidence clearly supported the plea of the appellant and in any case, showed that the witnesses examined on behalf of the respondent were totally unworthy of credence as to the circumstances in which the shots were fired.
We cannot therefore say that the learned Magistrate was wrong in his judgment that there was no sufficient ground for proceeding further on the complaint.
We accordingly hold that the High Court set aside the order of the learned Magistrate on an erroneous view of the scope of section 203 of the Code of Criminal Procedure.
We allow the appeal, set aside the order of the High Court dated September 13, 1957, and restore that of the learned Presidency Magistrate dated April 30, 1957.
Appeal allowed.

Output:
On June 3, 1956, riots broke out after a public meeting held in Bombay in connection with the re organisation of the State of Bombay was dispersed on account of the disturbances created therein.
The car in which the appellant was travelling was stopped by the crowd and some of those who surrounded the car caught hold of him by his neck and hair and wanted to drag him out of the car.
The appellant then opened fire with his revolver.
The respondent 's brother, S, who was hit on the chest by one of the shots fired was removed to the hospital but died before medical assistance could be given.
The police surgeon who made a postmortem examination expressed the opinion that the shot must have been fired from a distance of 2 to 18 inches only.
The Coroner 's jury returned a verdict that S died of the wound caused by a bullet fired by the appellant " under such circumstances as would render the firing to be in the exercise of the right of private defence and as such justified.
" The respondent filed a complaint in the court of the Presi dency Magistrate, Bombay, on the allegation that his brother died as a result of the firing resorted to by the appellant who thereby committed an offence punishable under section 302 of the Indian Penal Code and prayed that process might be issued against him.
The Magistrate referred the complaint to the police for enquiry and report under section 202 of the Code of Criminal Procedure and after considering the report said: " From the statements recorded by the Police in this case and from the surrounding circumstances of the case, I have come to the definite conclusion that the report of the Police stating that the shot was fired by the accused in self defence is true.
The statement of the police surgeon conclusively supports the conclusion.
The eye witnesses brought by the complainant are not credible witnesses.
It will be harassment to the accused and waste of public time if any process is issued in this case ".
The Magistrate, accordingly, dismissed the complaint under section 203 of the Code of Criminal 2 Procedure.
The High Court, in revision, set aside the order of dismissal and directed the Magistrate to issue process against the appellant and deal with the case in accordance with law, on the grounds that this was not a case in which it was proper for the Magistrate to dismiss the complaint under section 203 of the Code of Criminal Procedure, that proof of the plea of self defence could not be held to have been established from the mere report of the police, and that there was nothing in section 202 or section 203 of the Code of Criminal Procedure which abrogated the rule as to the pre sumption laid down in section 105 of the Indian Evidence Act.
Held, that under section 203 of the Code of Criminal Procedure the judgment which the Magistrate has to form must be based on the statements of the complainant and his witnesses and the result of the investigation or inquiry, and in arriving at his judgment he is not fettered in any way except by judicial considerations ; provided that there are satisfactory and reliable materials on which he can base his judgment as to whether there is sufficient ground for proceeding on the complaint or not, if he has not misdirected himself as to the scope of an enquiry under section 202 and has applied his mind judicially to the materials before him, it would be erroneous in law to hold that a plea based on an exception can never be accepted by him in arriving at his judgment.
Held, further, that on the facts of the present case, the order of the Magistrate was correct and that the judgment of the High Court setting aside that order on an erroneous view of the scope of section 203 of the Code of Criminal Procedure must be set aside.


Input:
Appeal No. 1899 of 1967.
Appeal by special leave from the judgment and order dated August 24, 1966 of the Calcutta High Court in Income tax Reference No. 91 of 1962.
G. C. Sharma, F. Kuwnaria, B. R. Diwan and P. K. Mukherjee, for the appellant.
Jagadish Swarup, Solicitor General, P. L. Juneja, R. N. Sachthey and B. D. Sharma, for the respondent.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by special leave from the judgment of the Calcutta High Court in an Income tax Reference.
The assessee who is the appellant is a public limited company doing the business of jute and manufacturing of jute goods.
The method of accounting followed by the assessee is the mercantile system.
During the assessment year 1955 56 (the previous year ended on 31st December, 1954), the assessee claimed a deduction of Rs. 1,49,776/on account of sales tax determined to be payable by the sales tax authorities on the sales made by the assessee during the.
aforesaid previous year.
The sequence of dates may be mentioned.
The income tax return was filed on 13th January, 1956.
The demand notice was served by the Sales Tax authorities on the 21st November 1957.
On 9th November, 1959, the assessee filed a revised return claiming the aforesaid deduction.
The assessee had taken the order by which the demand for such tax had been created to the higher departmental authorities, as it was contesting its liability to the extent that had been determined.
The Income tax Officer, however, completed the assessment on 11th March, 2 7 9 1960 before any final decision was given in the proceedings relating to the assessment of sales tax.
According to the Income Tax Officer, the assessee was not entitled to claim the deduction of the aforesaid amount of sales tax inasmuch as it had denied its liability to pay that amount and had made no provision in its books with regard to the payment of that amount.
The Appellate Assistant Commissioner confirmed the order of the Income tax Officer.
The Appellate Tribunal dismissed the,, appeal of the assessee.
The following question of law was referred by the Tribunal for the opinion of the High Court: "Whether on the facts and in the circumstances of the case, amount of Rs. 1,49,776/ .
which was claimed by the assessee as a deduction on account of sales tax was deductible as a business expense?" The High Court was of the opinion that unpaid and disputed sales tax liability could not form the basis of a claim for deduction for the purposes of income tax.
The reasoning of the High Court mainly was that for the purpose of claiming a deduction under section 10(2) (xv) or the Income Tax Act, 1922 (hereinafter called the "Act"), mere legal liability was not enough.
There had to be an expenditure in the first place and it must be laid Out or expended wholly and exclusively for the purpose of such business.
The High Court further held that unpaid and disputed sales tax could not be validly deducted in the computation of business income even under section 10 (1) of the Act.
It has been submitted on behalf of the assessee that sales tax paid or unpaid would be admissible deduction under section 10 (2)(xv) as well as under section 10 (1).
It is pointed out that if the method of accounting adopted by the assessee is cash system,, it would qualify for deduction only in the year in which it has been actually paid.
If the method of accounting is mercantile system, then the deduction will be permissible in the year to which the liability relates irrespective of the point of time wheel the liability has actual been discharged.
Section (10)5 provides that in sub section (2) "paid" means actually paid or incurred according to the method of accounting upon the basis of which the profits or gains are computed, under the section.
The argument proceeds that in order 19 L1245 Su CI/71 280 therefore, that sales tax may qualify for deduction under section 10 (2) (xv), it has to be in the nature of an 'expenditure ' which has either been actually paid during the year of account or for the payment of which, the liability has been incurred in the accounting year, according as the method of accounting followed by the assessee is cash system or mercantile system.
It is indisputable that the amount of sales tax paid or payable by the assessee is an 'expendi ture ' within the meaning of section 10 (2) (xv).
The amount in question was thus a kind of expenditure about which there can be no doubt that it had been laid out or expended wholly or exclusively for the purpose of business carried on by the assessee.
The submission on behalf of the assessee in the alternative is that apart from valid deductibility of sales tax as an expenditure under section 10 (2) (xv) of the Act, it is a permissible deduction even under section 10 (1).
The profits of a business which are to be assessed to tax must be real profits and they have to, be ascertained on ordinary principles of commercial trading and commercial accounting.
Where an assessee is under a liability or is bound to make certain payment from the gross receipts, the profits and gains can only be net amount after 'such an amount is deducted from the gross profits or receipts.
In Commissioner of Income tax, West Bengal II vs Royal Boot House,(1) it was held that where the assessee followed the mercantile system of accounting and, without disputing the liability to pay the Sales Tax had made a provision for its payment in its account even though he had not actually paid the tax over to the authorities, the assessee was entitled to deduction in respect of the provision for sales tax from his income under section 10(2) (xv) of the Act.
It was, pointed out that under the provisions of the Sales Tax statutes, the liability to pay the tax was not dependent upon assessment or demand but was an obligation to pay the tax either annually, quarterly or monthly, as the case might be.
This case was and has been sought to be distinguished by the Revenue on the ground that the liability to pay the Sales Tax had not been disputed and the assessee had made a provision for its payment in its account As, will be presently (1) 281 seen this distinction is without substance and does not affect the true legal position.
Now under all sales tax laws including the statute with which we are concerned, the moment a dealer makes either purchases or sales which are subject to taxation, the obligation to pay the tax arises and taxability is attracted.
Although that liability cannot be enforced till the quantification is effected by assessment proceedings, the liability for payment of tax is independent of the assessment.
It is significant that in the present case, the liability had even been quantified and a demand had been created in the sum of Rs. 1,49,776/ by means of the notice dated 21st November, 1957 during the pendency of the assessment proceedings before the Income Tax Officer and before the finalisation of the assessment.
It is not possible ' to comprehend how the liability would cease to be one because the assessee had taken proceedings before higher authorities for getting it reduced or wiped out so long as the contention of the assessee did not prevail with regard to the quantum of liability etc.
An assessee that follows the mercantile system of accounting is entitled to deduct from the profits and gains of the business such liability which had accrued during the period for which the profits and gains were being computed.
It can again not be disputed that the liability to payment of sales tax had accrued during the year of assessment even though it had to be discharged at a future date.
In Pope The King Match Factory vs Commissioner of Income tax, Madras (1) a demand for excise duty was served on the assessee and though he was objecting to it and seeking to get the order of the Collector of Excise reversed, he debited that amount in his accounts.
on the last day of his accounting year and claimed that amount as a deductible allowance on the ground that he was keeping his accounts on the mercantile basis.
The Madras High Court had no difficulty in holding that the, assessee had incurred an enforceable legal liability on and from the date on which he received the Collector 's demand for payment and that his endeavor to get out of that liability by preferring appeals could not in any way detract from or retard the efficacy of the liability which (1) 28 2 had been imposed upon him by the competent excise authority.
In our judgment, the above decision lays down the law correctly.
The main contention of the learned Solicitor General is that the assessee failed to debit the liability in its books of accounts and, therefore, it was debarred from claiming the same as deduction either under section 10 (1) or under section 10 (2) (xv) of the Act.
We are wholly unable to appreciate the suggestion that if an assessee under some misapprehension or mistake fails to make an entry in the books of account and although under the law, a deduction must be allowed by the Income Tax Officer, the assesses will lose the right of claiming or will be debarred from being allowed that deduction.
Whether the assessee is entitled to a particular deduction or not will depend on the provision of law relating thereto and not on the view which the assessee might take of his rights nor can the existence or absence of entries in the books of account be decisive or conclusive in the matter.
The assessee who was maintaining accounts on the mercantile system was fully justified in claiming deduction of the sum of Rs. 1,49,776/being the amount of sales tax which it was liable under the law to pay during the relevant accounting year.
it may be added that the liability remained in tact even after the assessee had taken appeals to higher authorities or Courts which failed.
The appeal is consequently allowed and the judgment of the High Court is set aside.
The question which was referred is answered in favour of the assessee and against the Revenue.
The assessee will be entitled to costs in this Court and in the High Court.
Appeal allowed.

Output:
The appellant was a public limited company doing the business of jute and manufacturing of jute goods.
It followed the mercantile system of accounting.
Before the Income tax Officer in connection with the assessment year 1955 56 the appellant claimed a deduction on account of assessed sales tax.
The demand of sales tax waS contested by the appellant before the higher sales tax authorities but before the matter was finalised the Income tax Officer completed the assessment.
He disallowed appellant 's claim for deduction of sales tax on the ground that the liability, to pay sales tax had not been accented by the appellant and no provision had been made in its books with regard to payment of the assessed amount.
The authorities Linder the Act dismissed the appeals.
The High Court in reference was of the opinion that unpaid and disputed sales tax liability could not form the basis of a claim for deduction In appeal by special leave to this Court the appellant submitted that sales tax paid or unpaid would be admissible deduction under s.10(2)(xv) as well as section 10(1) of the Income tax Act, 1922, and that where the mercantile system of accounting was observed the deduction would be permissible in the year to which the liability relates irrespective of the point of time when the liability has been actually discharged.
HELD: Under all sales tax laws including the statute applicable to the present case the moment a dealer makes either purchase or sales which are subject to taxation, the obligation to pay tax arises and taxability is attracted.
Although that liability cannot be enforced till the quantification is effected by assessment proceedings, the liability for payment of tax is independent of the assessment.
In the present case the liability had even been quantified.
The liability could not cease to be one merely because the assessee had taken proceedings before higher authorities.
An assessee that follows the mercantile system of accounting is entitled to deduct from the profits and gains of the business such liability which had accrued during the period for which the profits and gains were being computed even though it had to be discharged at a future date.
[281B F] Commissioner of Income tax West Bengal II vs Royal Boot House, and Pope The King Match Factory vs Commissioner of Income tax Madras, , applied.
278 The contention that since the assessee had failed to debit the liability in its books of accounts, it was debarred from claiming the same as deduction either under s.10(1) or s.10(2)(xv) of the Act could not be accepted.
Whether the assessee is entitled to a particular deduction or not will depend on the provision of law relating thereto and not on the view which the assessee might take of his rights nor can existence or absence of entries in the books of accounts be decisive or conclusive in the matter.
[282 C E] The appeal must accordingly be allowed.


Input:
ivil Appeal No. 785 of 1988.
From the Judgment and Order dated 6.3. 1987 of the Bombay High Court in Writ Petition No. 1166 of 1981.
Appellant in person.
Dr. Y.S. Chitale and V.B. Joshi for the Respondents.
The Judgment of the Court was delivered by AHMADI, J.
This is an appeal by Special Leave under Article 136 of the Constitution of India from the Judgment of Bombay High Court dated 6th March, 1987 in Writ Petition No. 1166 of 1981.
The appellant, C.D. Tase, joined the college run by Vidhya Prasarak Mandal, Thane, on June 15, 1971 as a lectur er in the pay scale of Rs.300 25 600 prescribed by the Uni versity Grants Commission pursuant to the recommendations made by the Second Pay Commission.
By Government Resolution No. USG 1167 U dated November 6, 1967, the Government of Maharashtra had accepted in principle the Government of India scheme based on the recommendations of the University Grants Commission for improvement of salary scales of uni versity teachers and teachers in affiliated Arts, Science, Commerce and Secondary Training Colleges.
Accordingly, the Government of Maharashtra directed all the Universities in the State to implement the pay scales recommended by the Commission.
The scales recommended were to take effect from April 1, 1966.
Three scales were recommended for lecturers, namely, Rs.300 25 600 (Lecturers, Junior Scale), Rs.400 30 640 40 800 (Lecturers, Senior Scale) and Rs.700 40 1100 (Senior Lecturers).
The Universities in turn directed col leges affiliated to them to implement the recommendations accepted by the State of Maharashtra.
The appellant 's col lege was at the material time affiliated to the University of Pune.
The Additional Director of Education, Maharashtra State by his letter No. S 95/127 A 739 dated January 18, 1968 addressed to the Principals of non Government Arts, Science, Commerce and S.T. Colleges in the State directed the colleges to implement the recommendations made by the Second Pay Commission as approved by the State of Maharashtra.
The University in turn by its letter No. PU/Stat/F.3/A/67 68/236 dated February 7, 1968 directed the Principals of all colleges to implement the new pay scales with effect from April 1, 1966.
Thus, in the category of lecturers (excluding Principals) three scales as stated above were prescribed subject to the condition that the number of senior lecturers and lecturers, senior scale, was not to exceed 1/4th of the total strength of lecturers.
It was left to the Universities to formulate norms which the lecturers must satisfy for being considered for the posts of senior lecturers and/or lecturers, senior scale, as the case may be.
The High Court while disposing of the writ petition filed by the appellant and his two companions, Writ Petition No. 1166 of 1981, observed: "There does not appear to be much dispute that if the report of the Second Pay Commission of University Grants Commission was implemented in letter and spirit, the petitioners would have respectively qualified for the category of Senior Lecturers in the pay scale of Rs.700 40 1100 on 2nd March, 1974, 15th June, 1974 and 15th June, 1975 respectively.
" It is evident from the above observation of the High Court that the appellant was entitled to placement in the senior scale of Rs.700 401100 with effect from June 15, 1975.
In the meantime, sometime in 1978, a decision was taken to implement the Third Pay Commission Report prescribing a running scale of Rs.700 1600 for teachers with effect from January 1, 1973.
All the Universities in the State were directed to implement the new scale of Rs.700 1600 pre scribed for senior lecturers.
This raised the question whether placement of teachers already made after January 1, 1973 in the higher pre 1973 scales would be valid on the implementation of the revised scale w.e.f. January 1, 1973.
By Government Resolution No. USG 1178/24585/XXXII (Cell) dated June 27, 1978, it was clarified that placement of teachers made in one of the higher pre 1973 scales of 400 800 and Rs.700 1100 on or after January 1, 1973 would be considered valid and protected subject to the prescribed conditions.
The High Court points out that if the above clarification is accepted as correct the appellant would be entitled to placement in the high scale of Rs.700 1100.
However, relying on the University of Pune 's subse 740 quent letter of March 10, 1978 whereby the college manage ments were directed to ignore the pay scales prescribed pursuant to the recommendations of the Second Pay Commission in the case of teachers who became entitled to the higher scale after January 1, 1973, it was submitted before the High Court that since the new pay scale of Rs.7001600 was made operative from January 1, 1973, lecturers who were not given the benefit of the revised scale of Rs.700 40 1100 could be fixed in the new scale of Rs.700 1600 with effect from January 1, 1973 as per the Circular No. Aff/Recg/193 of 1977 dated May 19, 1977.
This submission made on behalf of the University authorities found favour with the learned Judges of the High Court as they thought that there was 'nothing very inequitable ' about the decision taken by the university authorities.
The appellant who argued the case in person submitted that the High Court failed to appreciate the fact that the decision of the university authorities was highly prejudi cial to the appellant and others similarly situated, as it resulted in substantial monetary loss.
It must be realised that the. decision to implement the recommendation of the Third Pay Commission w.e.f. January 1, 1973 was taken some time in 1978.
In the meantime, several lecturers of affili ated colleges were placed in the higher scale of Rs.700 1100.
That is why, it became necessary to seek a clarifica tion from the Government whether the placement allowed to such lecturers in the higher scale would be treated as valid having regard to the implementation of the new scale of Rs.700 1600 w.e.f.
January 1, 1973.
As pointed out earlier, the Government by their Resolution of June 27, 1978 clari fied that such placement in the higher scale of Rs.700 1100 was valid subject to the fulfilment of the prescribed condi tions.
The placement of such lecturers in the higher scale of Rs.700 1100 was therefore directed to be protected while bringing them on the revised scale of Rs.700 1600.
It fol lows that if the appellant had been placed in the higher scale of Rs.700 1100 when he became entitled to it on June 15, 1975 his pay would have been protected as per the clari fication while being placed in the revised scale of Rs.700 1600.
The appellant is, therefore, justified in making a grievance that merely because the college/ university au thorities did not place him in the higher scale of Rs.7001100 w.e.f. June 15, 1975 he cannot be made to suffer on the ground that he will get the benefit of two reports simultaneously if he is first placed on the scale of Rs.700 1100 and, thereafter brought on the scale of Rs.700 1600.
It is evident from the letter No. BY/Genl/1981 82 dated January 28, 1982 addressed to all the Principals of Arts, Science and Commerce Colleges by the Administrative Officer of Higher Edu 741 cation Grants, Bombay Region, Bombay that the college au thorities were directed to furnish information in the pre scribed form in respect of teachers who were entitled to the benefit of the pre revised scales of Rs.700 1100 and Rs.400 800.
The Principal of the college forwarded the information to the Administrative Officer under his letter ACC/ TNE/2080 dated March 13/15, 1982 in the prescribed proforma which includes the name of the appellant as one of the persons entitled to the same benefit.
We may incidental ly mention that his two companions in the High Court Dr. M.P. Kendurkar and Professor N. Krishnan were also included in the list of eligible lecturers entitled to the higher scale of Rs.700 1100.
The subsequent Resolution No. USG 1178/ 160692(19) UNI/4 dated April 7, 1983 issued by the State of Maharashtra also stipulates as under: "The question of placement of these teachers was, therefore, under consideration of Govern ment for sometime past.
Government is now pleased to direct that the placement of only those teachers whose names were recommended for placement in the senior lecturers scale of I.S.S. viz. Rs. 1100 and 400 800 to the universities by the respective colleges man agements prior to 4th October, 1975 i.e. the date of issue of Government Resolution assign ing revised University Grants Commission recommended scales but their placement was not effected due to some reason or the other, should be made with effect from the dates the placement is approved by the concerned Univer sities.
" It is evident from the above decision that lecturers whose name were recommended for placement in the higher scale before October 4, 1975 were entitled to such placement before being brought over to the revised scale of Rs. 700 1600.
The appellant was entitled to placement in the higher scale of Rs.700 1600 w.e.f.
June 15, 1975.
The college authorities failed, for no fault of the appellant and his companions, to forward their names to the University in the prescribed proforma for reasons best known to them.
To deny the benefit to which the appellant and his companions were entitled on account of the lapse on the part of the college authorities would be highly unfair and unjust.
The High Court, however took the view that there was 'nothing very inequitable ' about the decision of the University to deny such placement to the appellant and his companions, but it is obvious that if they had been granted placement on the due dates they would have been entitled to higher salary and allowances related to basic salary e.g. dearness allowance which is a certain percentage of basic 742 salary, would have gone up.
In addition they would have earned increments by the time they became entitled to the revised scale of Rs.7001600.
It is, therefore, obvious that the decision of the university not only appears to be 'ine quitable but also discriminatory inasmuch as it sought to treat equals as unequals by protecting those who had secured the placement and denying the same to others whose names the college managements had failed to forward in good time.
We are, therefore, of the opinion that the appellant was enti tled to placement in the higher scale of Rs.700 1100 before being brought over to the revised scale of Rs.700 1600.
For the above reasons, we allow the appeal and set aside the impugned order of the High Court dated March 6, 1987.
We direct the respondents to grant the benefit of placement in the higher scale of Rs.700 1100 to the appellant from the date he became entitled to the same i.e. June 15, 1975 and thereafter fix his pay in the revised scale of Rs.700 1600.
The appellant will be entitled to the monetary benefit accruing to him on the implementation of the above directive which should be worked out and paid to him within three months from today.
The appellant will also be entitled to cost from the University of Bombay which we quantify at Rs.2500.
Before we part, we may mention that the two companions of the appellant who were writ petitioners in the High Court have not approached this Court under Article 136 of the Constitution but we find that they were similarly situated and were entitled to placement in the higher scale of Rs.700 1600 w.e.
L March 2, 1974 and June 15, 1975.
We hope that the authorities will extend the same benefit to them also notwithstanding their failure to approach this Court, perhaps on account of cost constraint.
It would be highly unfair to deny to them the monetary benefits to which they are legally entitled.
We do hope that the concerned authori ties will not drive them to another round of litigation.
G.N. Appeal al lowed.

Output:
The appellant joined as a Lecturer in 1971, in a College affiliated to Pune University in the scale of Rs.300 600 prescribed by the University Grants Commission.
Earlier, in 1967 the State Government accepted in principle the Govern ment of India Scheme based on recommendations of the Univer sity Grants Commission for improvement of pay scales of all university and college teachers, and issued directions to all universities in the State.
The Universities in turn directed all the affiliated colleges accordingly.
The new scales were Rs.300 25 600 (Lecturers, Junior Scale), Rs.400 30 640 40 800 (Lecturers, Senior Scale) and Rs.700 40 1100 (Senior Lecturers) and were to take effect from 1.4.1966.
The number of Senior Lecturers and Lecturers (Sr. Scale) was not to exceed 1/4 of the total strength of Lecturers.
Again, in 1978, it was decided to implement the next report, viz, the Third Pay Commissioner 's report which prescribed a running scale of Rs.700 1600 with effect from 1.1.1973.
All the Universities in the State were directed to implement the same.
A question was raised as to whether placement of teachers already made after 1.1.1973 in the pre 1973 scales would be valid on the implementation of the revised scale with effect from 1.1.1973.
The Government clarified that such a placement would be valid and protect ed, subject to the prescribed conditions.
However, the Pune University directed the College Managements to ignore the pay scales prescribed by the earlier Pay Commission in case of teachers who became entitled to the higher scale after 1.1.73.
Against this, the appellant and two others ap proached the High Court by way of a Writ Petition.
However, the High Court felt that there was 737 nothing very inequitable about the decision taken by the University authorities and declined to interfere.
This appeal, by special leave, is against the said judgment of the High Court.
Before the Court, the appellant argued that the High Court failed to appreciate the fact that the decision of the University authorities was highly prejudicial to the appel lant and others who were similarly situated, as it resulted in substantial monetary loss.
Allowing the appeal, HELD: 1.
The decision of the university not only appears to be 'inequitable ' but also discriminatory inasmuch as it sought to treat equals as unequals by protecting those who had secured the placement and denying the same to others whose names the college managements had failed to forward in good time.
The appellant was entitled to placement in the higher scale of Rs.700 1100 before being brought over to the revised scale of Rs.700 1600.
[742B] 2.
The Lecturers whose names were recommended for place ment in the higher scale before October 4, 1975 were enti tled to such placement before being brought over to the revised scale of Rs.700 1600.
The appellant was entitled to placement in the higher scale of Rs.700 1600 w.e.f.
June 15, 1975.
The college authorities failed, for no fault of the appellant and his companions, to forward their names to the University in the prescribed proforma for reasons best known to them.
To deny the benefit to which the appellant and his companions were entitled on account of the lapse on the part of the college authorities would be highly unfair and un just.
The High Court, however took the view that there was 'nothing very inequitable ' about the decision of the Univer sity to deny such placement to the appellant and his compan ions, but it is obvious that if they had been granted place ment on the due dates they would have been entitled to higher salary and allowances related to basic salary e.g. dearness allowance which is a certain percentage of basic salary, would have gone up.
[741F H; 742A] 3.
The respondents are directed to grant the benefit of placement in the higher scale of Rs.700 1100 to the appel lant from the date he became entitled to the same i.e. June 15, 1975 and thereafter fix his pay revised scale of Rs.700 1600.
The appellant will be entitled to the monetary benefit accruing to him on the implementation of the above 738 directive which should be worked out and paid to him within three months.
[742C D] [The Court expressed the hope that the authorities will extend the same benefit also to the two companions of the appellant notwithstanding their failure to approach this Court, perhaps on account of cost constraint, and not drive them to another round of litigation.] [742F]


Input:
Civil Appeal No. 1744 of 1968.
(Appeal by Special Leave from the Judgment and Order dated 14 6 1967 of the Mysore High Court in Writ Petition No. 440/65).
Mrs. Shyamala Pappu and Girish Chandra, for the Appellant.
Narayana Nettar, for Respondents 4 and 5. 3 1338SCI/76 828 The Judgment of the Court was delivered by BEG, J.
The judgment under appeal after certificate of fitness of the case under Article 133(1)(c) of the Constitu tion of India, is very short as it purports to follow the ratio decidendi of Union of India vs
G.M. Shankariah & Ors.
,(1) where this Court had held upon a concession by the Attorney General, that a list prepared under Section 115 of the , (hereinafter referred to as 'the Act '), was provisional.
Therefore, it was held that the writ petition was premature as the final list of officers on an integrated seniority list was still to be prepared after hearing objections.
The High Court of Mysore seems to have been under the misapprehension that the case now before us is also governed by what was held by this Court in Shankariah 's case (supra) with reference to an entirely different and provisional list of Forest Officers.
The case now before us pertains to Animal Husbandry and Veterinary Services of the Mysore State in which the petitioner, was given, in the final integration list, a position to which he objected.
Apparently, the petitioner, whose date of birth is given as 28th June, 1915, has retired.
He is a respondent who has not appeared before us, and, therefore, could not be heard by us.
We have, however, gone through his petition and the affidavit filed in its support where, in paragraph 16, he states as fol lows: "The Mysore State Civil Service Integra tion Rules 1960 provide for filing objections only against the preliminary provisional Inter State Seniority List and do not provide any provision for filing objections or appeal ing against the final Inter State Seniority List as per Annexure 'B '.
Thus we have no other legal remedies open to us for the re dressal of our grievances and the abridgement of our fundamental rights guaranteed under the Constitution of India, and, therefore, we are forced to approach this Honble Court to invoke the writ jurisdiction for the redressal.
" It is apparent that the petitioner re spondent was claiming relief against the final Inter State seniority list although he was given due opportunity to object to the provi sional list.
Mrs. Shyamala Pappu, who has looked up the departmental records, informs us that the petitioner was given ample opportu nity to file his objections to the preliminary list.
Now, Shankariah 's case (supra) was con fined to an admission on behalf of the Central Government that the list before the Court was provisional so that the petitioners before the Court on that occasion were to get opportuni ties of puting forward their objections before the final list is prepared.
In the case before us, the petitioner admits that the Mysore State Civil Services Integration Rules provided for filing of objections against the preliminary provisional Inter State Seniori ty list.
Presumably, he had that opportunity.
Otherwise, he would, no doubt have objected that the rules had not been complied (1) S.L.R. 1969 p.1 (C. As.
1439 & 1446 of 1967 decided on 16 10 1968).
829 with, which he did not do.
His grievance seemed to be that he was not heard after the final list was prepared.
We are unable to appreciate.
this line of attack upon the final list.
We think that the concession in Shankari ah 's case (supra) was confined to the facts of that particular ease.
There the list was provisional.
The most that could be urged, in the light of decisions of this Court, is that a person whose seniority is to be determined under Section 115 of the Act must be given.
an opportunity to object to the proposed assign ment of a place to him in the seniority list.
As already observed above, the petitioner had ample opportunity to do that.
Hence, the principle recognised in Shankariah 's case (supra) was not applicable to such a case.
The judgment of the Mysore High Court was, in our opinion, based on an apparent misun derstanding of Shankariah 's case (supra) and on a failure to appreciate the facts of the case of the petitioner respondent which is now before us.
There was not reference whatsoever to any facts of the case in the order of a few lines by which the petitioner 's petition was disposed of by the High Court on the errone ous assumption that it was governed by Shan kariah 's case (supra).
As the petitioner in the High Court, who is the, respondent before us, was unrepresented, Mrs. Shymala Pappu, appearing on behalf of Union of India, very Conscientiously, took us through Union of India & Anr.
P.K. Roy & Ors.
( '1) from which, learned Counsel thought, the following observations could perhaps be cited on behalf of the petitioner respondent (at p. 202): "it was argued by Mr. Ashoke Sen that in regard to both these matters the respond ents have a right of representation and the final gradation list should have been pub lished after giving them further oppor tunity to make a representation.
Normally speaking, we should have thought that one opportunity for making a representation against the preliminary list published would have been sufficient to satisfy the require ments of law.
But the extent and applicationof the doctrine of natural justice cannot be imprisoned within the straight jacket of a rigid formula.
The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the per sons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case (See the decision of this Court in Shri Bhagwan and Anr.
vs Ram Chand & Ant. ; , 222.
In view of the special circumstances of the present Case we think that the respondents were entitled to an opportunity to make a representation with regard to the two points urged by Mr. Ashoke Sen before the final gradation list was published.
As no such opportunity was furnished to the respondents with regard to these two matters (1) 202.
830 we hold that the combined final gradation list dated April 6, 1962, so far as category 6 is concerned, is ultra vires and illegal and that part of the notification alone must be quashed by grant of a writ in the nature of certiorari".
We think that any claim to have a say against the final fist prepared, on an analogy with the second opportunity which is afforded to a person to be punished after arriving at a decision on the facts of a departmental trial and proposal to inflict a particular punishment upon him, is quite inap propriate.
No element of punishment at all is involved in preparing either a provisional or a final seniority list.
All that is done is that certain principles are applied in the preparation of the list.
These principles are generally found in the rules or executive directions which are known to or are capable of being found out by the persons affect ed.
When a provisional seniority fist is prepared, there is a possibility of some mistakes occurring about the facts of a case or in the application of those rules.
It would, therefore, be quite fair to give a person affected an 'oppo rtunity to be heard against the proposed fist before it is finalised so that any possible mistakes, either on facts relating to his particular case or of law in applying the rules governing seniority to those facts, may be rectified.
But, once he has had that opportunity, it cannot possibly be said that he should have a further opportunity against even a final seniority list.
If he was to have that opportunity the list would not really be final but only provisional or preliminary.
It will be obviously contradictory to hold it to be a final list and yet declare it Subject to modifica tions on further objections.
We are unable to find any rule of natural justice having such a paralysing scope.
In P.K. Roy 's case (supra), the opportunity afforded was to be given before the publication of the final list.
It was an opportunity to be given before the final list was to be declared and published as a final list.
A right to representation was recognised as existing at time when the list was still to be considered as not finalised presumably because some mistakes had crept in due to want of heating on two points.
Evidently what was meant was that the publication gave the list finality.
In that particular case, the fist had been prepared without due regard to the particular important points which had to be considered before finalisation.
What we have observed does not mean that, if a final list is prepared contrary to the rules applicable or is vitiated on some ground showing that a condition precedent to the finalisation of the list is absent, it would still be inviolable ,Dr sacrosanct.
Even a list purporting to be final can be vitiated by non observance of conditions prece dent.
In order to establish the invalidity of the final list on some such grounds of invalidity, those grounds have to be shown to exist.
We find no such grounds in the ease before us.
Learned Counsel for the Central Government had cited before us Union of India vs
G.R. Prabhavalkar & Ors.
(1) where it was held by this Court (at p. 2106): (1) A.I.R. 1973 'S.c. 2102 at 2106.
831 "In our opinion the contentions of the learned Additional Solicitor General are well founded.
The Central Government, under Sec. 115 of the Act, has to determine the princi ples governing equation of posts and prepare a common gradation list by integration of services.
To assist it in the task of inte gration of services and for a proper consid eration of representations, the Central Gov ernment is empowered to establish Advisory Committees.
The Central Government is bound to ensure a fair and equitable treatment to officers in the matter of integration of services and preparation of gradation lists.
It has also to give a full and fair opportuni ty to the parties affected to make their representations; and the Central Government has also to ,give a proper consideration to those representations.
So long as the Central Government has acted properly according to the provisions of the Act, we are of the view that a Court cannot go into the merits or otherwise of equation of posts which is a matter within the province of the Central Government".
It was also held there (at p. 2106): "It is no doubt true that the Central Government must have due regard to the princi ples enunciated by it in consultation with the States for the purpose of equation Of posts.
It must not only give an opportunity to the concerned officers to make representations, but it must also give those representations a proper consideration.
It is not within the province of the Courts to lay down what are in the principles to be adopted for purposes of equation.
That falls within the purview of the statute concerned and the authorities charged with such duty.
The power of the Courts is only to see that an authority has acted properly in accordance with the statute.
If that is established, the decision of the authorities concerned will have to stand.
If a particular decision is mala fide or arrived at on totally irrelevant and extraneous consider ations, such a decision can be interfered with by Courts.
In this case, no mala fides are alleged.
" We find that, as was the case of the petitioner in Prabhavalkar 's case (supra), the petitioner respondent Dr. R.D. Nanjiah, and others similarly placed respondents before us have been unable to make out, in their petitions, any grounds for interference with the final list.
We, therefore, allow this appeal, and set aside the judgment and order of the Mysore High Court.
The parties will bear their own costs.
V.P.S. Appeal allowed.

Output:
(1 ) When a provisional inter State seniority list is prepared for integrating services after States re organisa tion, there is a possibility of some mistakes occurring about the facts of a case or in the .application of the relevant statute or rules or executive directions governing seniority.
It would, therefore, be quite fair to give the person affected an opportunity to be heard against the proposed list before it is made final under 8. 115.
State Reorganisation Act, 1956, so that.
any possible mistakes, either in the facts relating to his case or in the law or rule applied with regard to the proposed assignment of a place to him in the seniority list may be rectified.
But, once he had that opportunity.
it cannot be said that he should have a further opportunity against even a final seniority list, for then such a list would not really be final but will only he provisional or preliminary.
[830 C D] (2) But, even a final list, if it is prepared contrary to the rules applicable or is vitiated on some ground show ing that a condition precedent to the finalisation of the list is absent, or a particular decision is malafide or arrived at on totally irrelevant or extraneous considera tions.
such a final list could be declared invalid by the Court.
G] In the present case.
the officer was not satisfied with the position given to him the final seniority list.
But, since he had an opportunity Under the integration rules of the State for filing objections against the preliminary provisional list, he cannot urge that he should he heard again alter the final list was prepared.[829 A] He cannot claim to have a say against the final list on the analogy of a second opportunity to show cause against a proposed punishment in a departmental enquiry, because.
no element of punishment is involved in preparing either a provisional or a final seniority list.
[830 B] He is not entitled to any relief because he had not made out in his petition to the Court any of the grounds on which a final list can be assailed.
[831 G] Union of India vs
G.M. Shankariah & Ors. etc.
(S.L.R. 1969 p. 1 ) (C As.
1439 & 1446 of 1967 decided on 16 10 1968) explained.
Union of India & Anr.
v P.K. Roy & Ors.
[1968] 2 S.C.R. 186 @ 202 and Union of India vs
G.R. Prabhavalkar & Ors. ; at 2106, followed.


Input:
: Criminal Appeal No. 411 of 1976.
Appeal by Special Leave from the Judgment and Order dated the 22nd April, 1975 of the Delhi High Court in Crimi nal Revision No. 258 of 1974.
Frank Anthony and D. Gobrudhan for the Appellant.
R.N. Sachthey `(Not present) for Respondent No. 1.
G.S. Vohra, S.K. Gambhir and K.L. Taneja for Respondent No. 2.
The Judgment of the Court was delivered by SHINGHAL, J.
This appeal of Smt.
Parmeshwari Devi, by special leave, arises from the judgment of the Delhi High Court dated April 22, 1975 dismissing her application for revision of the order of the Additional Sessions Judge of Delhi dated August 29, 1974, confirming the order of a Metropolitan Magistrate of Delhi dated August 8, 1974.
The facts giving rise to the appeal are quite simple and may be shortly stated.
A complaint was filed by respondent N.L. Gupta on behalf of Smt.
Patashi Devi for the commission of offences under sections 181, 182, 193, 197, 199, 200, 465, 466 and 471 of the Indian Penal Code by Nand Kishore, Ghanshyam Das and Sanwar Mal.
It was alleged that Smt.
Patashi Devi had one fifth share in the firm of M/s Gupta Electric and Machinery.
Stores of which Smt.
Parmeshwari Devi (the present appellant), Smt.
Dropadi Devi and Madan Lal Gupta were the other partners.
According to the complaint, the business of the firm was mainly looked after by Smt.
Parmeshwari Devi 's husband Mohan Lal and accused No. 1 who was here brother.
Patashi Devi and two other partners "retired" from the business on April 1, 1968 without settling the accounts.
Patashi Devi asked Mohan Lal and accused No. 1 who was her brother Smt.
Patashi settling accounts.
Accused No. 2 filed an attested copy of a deed of dissolution, alleged to be signed by Smt.
Patashi Devi, in the office of the Registrar of Firms on November 14, 1968, along with an intimation of the dissolution of the firm which also purported to be signed by her.
The complainant filed an application under section 94 of the Code of Criminal Procedure, 1898, hereinafter. referred to as the Code, for a direction to the accused to file the original deed of dissolution.
The accused however stated in the court that they were employees of the firm and the document was not in their possession.
The complainant then made another application on .March.
28, 1974 under section 94 with a prayer that Smt.
Parmeshwan Devi may be directed to produce the document.
The court made an order on March 28, 1974 summoning Smt.
Parmeshwan Devi, with the document.
She stated in her reply that she did not know anything about the document and that after her husband 's death the com plainant had taken away all the records of the firm.
She stated further that she was a 'Pardanashin ' 12 1458SCI/76 162 lady living in Calcutta and need not be summoned in the court.
The Metropolitan Magistrate thereupon made order dated August 8, 1974 as follows, "In my view when a person is summoned to attend the Court it is desirable that such summoned person attends and made statement on oath that he is not in the possession of the documents summoned, so that the court may take further steps to secure the production of the documents as envisaged u/s 96 Cr.
P.C. Merely sending a reply through an Advt.
that the document is not in his possession is not sufficient compliance of the order.
The request of the Ld. counsel for Parmeshwari Devi that a commission may be issued for recording the statement of Smt.
Parmeshwari Devi cannot be granted as the case is already getting old and issuance of a commission would mean undesirable delay of the case.
The counsel for Smt.
Parmeshwari Devi Shri C.L. Mala is now requested to intimate Smt.
Parmeshwari Devi forthwith to attend this court and produce the document if in her possession on 30th August, 1974.
The Ld. counsel for Parmeshwari Devi has also stated that Smt.
Parmeshwari Devi is prepared to file an affidavit even to say that she is not in the possession of the documents summoned but in my view this also does not serve the purpose as calling of Smt.
Parmeshwari Devi in the court and recording her statement on an oath will give a chance to the court to put her a few questions for satisfying itself regarding the whereabouts of the document in question.
" As has been stated, Smt.
Parmeshwari Devi 's applications for revision of this order have been dismissed by the Additional Sessions Judge and the High Court and this is how she has come in appeal to this Court.
It will be recalled that it was the complainant who made an application under section 94 of the Code stating that as the deed of dissolution of the partnership was essential for the trial of the case, Smt.
Parmeshwari Devi may be directed to produce it.
Parmeshwari Devi was not a party to the case, and no reason whatsoever was given in the application why the document was likely to be in her possession or power beyond stating that the accused had stated in their reply the earlier application under section 94 that they were employees of the firm and were not in possession of the document, and she was the widow of the late Mohan Lal Gupta.
The Magistrate therefore "summoned" her "with the document" by his order dated March 28, 1974 which is not, however, the subject matter of controversy before us.
The question is whether the subsequent order of the Magistrate dated August 8, 1974 is according to law by which Smt.
Parmeshwari Devi has been directed to attend the court so that if she made a "statement on oath" that she is not in possession of the document, the court may get a chance to "put her a few questions for satisfying itself regarding the whereabouts of the documents ? 163 Chapter VII of the Code deals, inter alia, with process to compel the production of documents.
Sub section (1 ) of section 94, which deals with summons to produce any docu ment, merely authorises the court to issue a summons to the person in whose possession or power such document is be lieved to be, requiring him to "attend and produce it, or to produce, it, at the time and place stated in the summons." According to sub section (2) a person required under the section merely to produce a document shall be deemed to have complied with the requisition if he "causes such document . to be produced instead of attending person ally to produce the same".
There is nothing in the chapter to provide that the person who appears in the court, in pursuance of its summons under sub section (1) of section 94, thereby becomes a witness and can be examined and cross examined by the court although he has not been cited as a witness in the proceedings.
Even if a person produces the document for which a summons has been issued to him, section 139 of the Evidence Act clearly provides that he does not thereby become a witness by the mere fact that he produces it, and he cannot be cross examined unless and .until he is called as a witness.
So when Smt.
Parmesh wari Devi filed a reply to the application of the complain ant under section 94 of the Code stating that she did not know anything about the deed of dissolution and it was not in her possession, the utmost that the Magistrate could do was to issue a search warrant under sub section (1 ) of section 96 if he had reason to believe that she will not or would not produce the document as required by the summons.
It was also permissible for the Magistrate to order a search of Smt.
Parmeshwari Devi 's house under section 98 of the COde if it appeared to him that the requirements of that section had been fulfilled.
But there is no provision in the Code under which the court could record her statement on oath, on her inability to produce the document, or "put her a few questions for satisfying itself regarding the where abouts of the document.
" In the facts and circumstances of the case, no further action is in fact called for against the appellant.
The Additional Sessions Judge and the High Court went wrong in taking a contrary view.
It has been argued that the order of the Magistrate dated August 8, 1974 was an interlocutory order and the power of revision conferred by sub section (1) of section 397 of the Code of Criminal Procedure, 1974, could not be exercised in relation to it by virtue of sub section (2).
The Code does not define an interlocutory order, but it obviously is an intermediate order, made during the prelimi nary stages of an enquiry or trial.
The purpose of sub section (2) of section 397 is to keep such an order outside the purview of the power of revision so that the enquiry or trial may proceed without delay.
This is not likely to prejudice the aggrieved party for it can always challenge it in due course if the final order goes against it.
But it does not follow that if the order is directed against a person who is not a party to the enquiry or trial, and he will have no opportunity to challenge it after a final order is made affecting the parties concerned, he cannot apply for its revision even if it is directed against him and adverse ly affects his rights.
164 A somewhat similar argument came up for consideration before this Court in Mohan Lal Magan Lal Thacker vs State of Gujarat(1).
The controversy there centred round the meaning of article 134(1) (c) of the Constitution and the Court examined the meaning of the words "final" and "interlocuto ry".
It was held that the meaning "had to be considered separately in relation to the particular purpose for which it is required" to be interpreted.
No single test can be applied ' to determine whether an order is final or interloc utory.
Then it has been held by this Court in that case as follows ' "An interlocutory order, though not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals.".
It may thus be conclusive with reference to the stage at which it is made, and it may also be conclusive as to a person, who is not a party to the enquiry or trial, against whom it is directed.
As has been shown, the order of the Magistrate dated August 8, 1974 was not according to law and it adversely affected the appellant, who was not a party to the enquiry or trial, as it was solely directed against her.
As is obvious, she could have no opportunity to challenge it after the making of the final order, and such a belated challenge would have been purposeless for it would have given her no relief.
So in so far as the appellant is concerned, the order of the Magistrate could not be said to be an interlocutory order and the revisional courts erred in raising the bar of sub section (2) of section 397 against it.
We have gone through Dhola and others vs State(2) and The Central Bank of India Ltd. vs Gokal Chand(3) cited by Mr. Vohra.
Dhota 's case related to the grant of ball, and Gokal Chand 's case related to a right of appeal under sec tion 38(1) of the Delhi Rent Control Act against an order made inter partes.
They cannot therefore avail the respond ent in this case.
For the foregoing reasons, the appeal is allowed and the impugned orders of the High Court dated April 22, 1975 and of the Metropolitan Magistrate dated August 8, 1974 are set aside.
V.P.S. Appeal al lowed.
(1) ; (2) (1975) Crl.
L.J. (1) 1274.

Output:
Section 94(1), Cr. P.C., 1898, which deals with summons to produce any document, authorises the court to issue a sum mons to the person in whose, possession or power such docu ment is believed to be, requiring him to attend and produce it.
or to produce it at the time and place stated in the summons.
According to sub s.(2) a person required merely to produce a document shall be deemed to have complied with the requisition if he causes such document to be produced in stead of attending personally to produce it.
In the present case, during a criminal trial, the complain ant flied art application under section 94, for a direction to the accused to produce a document.
The accused stated that the document was not in their possession.
The complainant then made another application under the section praying that the appellant may be directed to produce the document.
The appellant was not a party to the case and no reason .whatso ever was given by the complainant in the application why the document was likely to be in appellant 's possession or power.
The Magistrate then passed an order summoning the appellant with the document.
The appellant, in her reply, professed ignorance of the document and stated that as she was a "pardanashin" lady she may not be sumoned to court.
The Magistrate thereupon passed another order directing her to attend the Court so that if she made a 'statement on oath ' that she was not in possession of the document, the Court may get a chance to put her a few questions for satis fying itself regarding the whereabouts of the document.
The appellant 's revision petitions against the order to the District Court and High Court were dismissed.
Allowing the appeal to this Court, HELD: (1) There is nothing in the Criminal.
Procedure Code providing that the person who appears in Court, in pursuance of a summons under section 94(1), becomes a witness and can be examined and cross examined even though he has not been cited as a witness.
Section 139, Evidence Act, also pro vides that if a person produces the document for which a summons has been issued to him, he does not thereby become a witness and that he cannot be cross examined until he is called as a witness.
All that the Magistrate could do was to issue search warrants under section 96(1) or section 98 if the, requirements of those sections were satisfied.
The Court could not therefore record the appellant 's statement on oath on her inability to produce the document, or put her a few questions for satisfying itself regarding its whereabouts.
[163C E] (2) The order, which was thus not according to law adversely affected the appellant who was not a party to the enquiry or trial.
Obviously she could have no opportunity to challenge it at the end of the trial, and such belated challenge would also be purposeless.
Therefore, the order could not be said to be an interlocutory order and the revisional courts erred in raising the bar of section 397(3), Cr.
P.C. 1974.
[164C D] Mohan Lal Magan Lal Thacker vs State of Gujarat ; , followed.