Input:
Civil Appeal No. 1998 of 1969.
Appeal by Special Leave from the Judgment and Decree dated 3 10 1968 of the Punjab and Haryana High Court in L.P.A. No. 348/64.
V. C. Mahajan, Mrs. Urmila Kapoor and Mrs. Shobha Dikshit for the Appellants.
Hardev Singh for the Respondent.
465 The Judgment of the Court was delivered by SARKARIA, J.
This appeal by special leave is directed against a judgment, dated October 3, 1968, of the High Court of Punjab and Haryana.
The facts leading to this appeal are that the appellants are partners of a firm, Bharat Industries, Chheharta.
By a Notification, dated May 15, 1946, the Chheharta Municipal Committee levied a profession tax under Section 61(1)(b) of the Punjab Municipal Act, 1911.
Initially, the tax was Rs. 15/ per annum and was levied on all the partners of the said firm.
By a Notification, dated July 4, 1958, the annual tax for trade, profession or calling for the owner of a factory registered under the Indian Factories Act, was raised to Rs. 200/ per annum and each of the six partners of the said firm were assessed to annual tax of Rs. 200/ by the Municipal Committee.
On October 30, 1960, the appellants filed a suit for permanent injunction restraining the defendant Committee from realising the profession tax demanded by it per letters Nos.
15 to 20, dated May 31, 1960, amounting to Rs. 1,200/ .
The appellants challenged the validity of the assessment contending that construed in the light of the definition given in section 2(40) of the Punjab General Clauses Act, the term "person" occurring in section 6(1)(b) of the Punjab Municipal Act, 1911, includes a 'firm ' and since the trade carried on by the 'firm ' is one, the tax could be levied only on the firm, and not on the partners individually.
On these premises, it was pleaded that the Municipal Committee in levying the tax on the individual partners had exceeded its statutory powers under Section 61(1)(b) of the Municipal Act.
The trial court dismissed the suit.
On appeal by the plaintiffs, the Additional District Judge, Amritsar, reversed the judgment of the trial court and decreed the suit.
The Municipal Committee carried a further appeal to the High Court.
The learned Single Judge, who heard the appeal, affirmed the judgment and decree of the first appellate court, on the reasoning which may be summed up as under: The term "person" in Section 61(1)(b) of the Municipal Act, interpreted in the light of the definition given in Section 2(40) of the Punjab General Clauses Act, includes a 'partnership '.
Under clause (b) of Section 61(1) of the Municipal Act, the basis on which the liability to pay tax arises, is the trade, profession or business; and if the 466 trade and business is one carried on by several persons collectively in partnership, then the partnership alone, and not the individual partners, are liable to pay the tax; that the liability on the partners will fall twice which is not contemplated by the scheme and language of the Municipal Act, even though all the partners are jointly and severally liable to any tax for the partnership business.
In support of his conclusion that the tax was on trade and not on persons, the learned Judge by way of analogy, referred to clauses (a), (c), (d), (e) and (f) of sub Section (1).
He also referred to two Madras decisions in The Municipal Commissioners of Nagapatam vs Sadaya Pillay(1) and Davies vs President of the Madras Municipal Commission(2): and found himself in entire agreement with the reasoning of the learned Judges in those cases.
Aggrieved, the Municipal Committee preferred a Letters Patent Appeal.
The Appellate Bench of the High Court held that to import the definition of the term "person" occuring in Section 2(40) of the Punjab General Clauses Act into Section 61(1) (b) of the Municipal Act, will be repugnant to the subject.
In the opinion of the Bench, under the scheme of the statute in question, the tax cannot be levied on a firm or factory as such, but only on the individual owners of the factory or of the firm.
On this reasoning, the Bench reached the conclusion "that under Section 61(1) (b) of the Act, it is the individual who is to be assessed and is liable to pay the tax mentioned therein and so the assessment as well as the demand of the tax from each of the plaintiffs does not suffer from any legal infirmity.
" The Bench further held that since the Committee in imposing the tax on the appellants herein, has not acted outside the provisions of the statute, "it would, on the basis of the judgment of the Supreme Court in Firm Seth Radha Kishan (Deceased) represented by Hari Kishan & Ors.
vs Administrator Municipal Committee, Ludhiana,(3) which also dealt with the provisions of the Municipal Act, follow that the impugned assessment could only be questioned under the provisions of Sections 84 and 86 of the Act, and the jurisdiction of the Civil Court in respect of tax levied or the assessment made is excluded".
In the result, the appeal was allowed and the trial court 's decision dismissing the suit was restored.
Before us, Mr. V. K. Mahajan, learned counsel for the plaintiffs appellants, has adopted the reasons given by the learned Single Judge of the High Court.
In support of his contentions, he has relied upon the 467 aforesaid Madras decisions.
His argument is that if the interpretation placed by the Appellate Bench of the High Court is allowed to stand, it will lead to anamolous and unconstitutional results.
Mr. Mahajan concedes that the individual partners are also 'persons ' within the meaning of clause (b) of Section 61(1).
He, however, maintains that the firm, also, is a 'person ' within the contemplation of this provision and as such, liable to be taxed; that if in respect of the one trade, which is being carried on by the firm, apart from each of the individual partners, the firm, also is separately assessed to Rs. 200/ per annum, not only the incidence of the tax will fall twice, the total liability therefor will far exceed the ceiling of Rs. 250/ per annum fixed by Article 276(2) of the Constitution.
In these premises, it is contended that an interpretation of Section 61(1) (b), which may lead to unconstitutional on irrational results should be eschewed.
With regard to the question of jurisdiction it is contended that since the Municipal Committee had in the exercise of its powers clearly acted beyond its jurisdiction, the suit was maintainable in the Civil Court.
Section 61(1)(b) of the Municipal Act, so far as material for this case, reads as under: "Subject to any general or special orders which the State Government may make in this behalf, and the rules, any committee may, from time to time for the purposes of this Act, and in the manner directed by this Act, impose in the whole or any part of the municipality any of the following taxes, namely: (1) (a). . . . (i) to (iii) . . . . (b) a tax on persons practising any profession or art or carrying on any trade or calling in the municipality.
Explanation.
A person in the service or person holding an office under the State Government or the Central Government or a local or other public authority shall be deemed to be practising a profession within the meaning of this sub section.
" From a plain reading of the extracted provision, it is clear that a tax leviable under clause (b) is, in terms, a tax on "persons".
The expression "persons" undoubtedly includes natural persons.
The class of such taxable persons has been indicated by the Legislature with reference to their occupational activity.
Thus, in order to be authorised, a tax under clause (b) of Section 61(1) must satisfy two conditions: 468 First, it must be a tax on "persons".
Second such persons must be practising any profession or art or carrying on any trade or calling in the municipality.
There can be no dispute that the appellants are "persons" and, as such, satisfy the first condition.
Even the learned counsel for the appellants has candidly conceded that the individual partners are also "persons" within the meaning of the said clause (b).
Controversy thus becomes narrowed down into the issue; Whether persons collectively doing business in partnership, in the municipality, fulfil the second condition ? That is to say, do such persons "carry of any trade or calling in the municipality" within the contemplation of clause (b) ? In our opinion, for reasons that follow, the answer to this question must be in the affimative. 'Partnership ' as defined in Section 4 of the , is the relation between persons who have agreed to share the profits of a business carried on by all or any of them for the benefit of all.
The Section further makes it clear that a firm or partnership is not a legal entity separate and distinct from the partners.
Firm is only a compendious description of the individuals who compose the firm.
The crucial words in the definition of 'partnership ' are those that have been underlined.
They hold the key to the question posed above.
They show that the business is carried on by all or any of the partners.
In the instant case, admittedly, all the plaintiff appellants are carrying on the business in partnership.
All the six partners are sharing the profits and losses.
All the partners are jointly and severally responsible for the liabilities incurred or obligations incurred in the course of the business.
Each partner is considered an agent of the other.
This being the position, it is not possible to hold that each of the six partners is not carrying on a trade or calling within the purview of clause (b) of Section 61(1) of the Municipal Act.
At the most, it can be said that each of these six persons is severally as well as collectively carrying on a trade in the Municipality.
There is nothing in the language of Section 61 or the scheme of the Municipal Act which warrants the construction that persons who are carrying on a trade in association or partnership with each other cannot be individually taxed under clause (b) of Section 61(1).
On the contrary, definite indication is available in the language and the scheme of this statute that such partners can be taxed as persons in their individual capacity.
As noticed already, clause (b) makes it clear in no uncertain terms that this is a tax on 'persons. ' Its incidence falls on individuals, who belong to a class practising any profession or art; or carrying on a trade or calling in the municipality.
469 To hold that persons who are collectively carrying on a trade in the municipality cannot be taxed individually, would be to read into the statute words which are not there.
There are no words in clause (b) or elsewhere in the statute which, expressly or by necessary implication, exclude or exempt persons carrying on a trade collectively in the municipality from being taxed as individuals.
To attract liability to a tax under this clause, it is sufficient that the person concerned is carrying on a trade in the municipality, irrespective of whether such trade is being carried on by him individually or in partnership with others.
Thus, both the conditions necessary for levying a tax under clause (b) of subsection (1) of Section 61 of the Municipal Act existed in this case.
The appellants are "persons" and they are carrying on a trade in Chheharata Municipality.
In the view we take, we do not think it necessary to go further into the question, whether the definition of 'person ' given in Section 2(40) of the Punjab General Clauses Act, can be imported into the statute under consideration, so as to include a contractual firm, also, within the purview of the expression 'persons ' used in clause (b) of Section 61(1).
Indeed, the entire effort to import the definition of 'person ' given in the General Clauses Act, into Section 61(1)(b) of the Municipal Act, is directed to find a foundation for the argument, that the construction adopted by the High Court could lead to double taxation and even unconstitutional results.
But in the instant case, nothing of this kind has happened.
The firm has not been assessed.
No question of double taxation or exceeding the Constitutional ceiling of Rs. 250/ fixed by Article 276(2) of the Constitution, arises on the facts of the present case.
The arguments advanced on behalf of the appellants on this aspect of the matter are merely hypothetical, and speculative.
This takes us to the second question, whether the Civil Court had jurisdiction to hear and determine the suit.
Section 84(1) of the Punjab Municipal Act provides that "an appeal against the assessment or levy of any. tax under this Act, shall lie to the Deputy Commissioner or to such other officer as may be empowered by the State Government in this behalf".
Then, there is a proviso to this sub section which says that when the Deputy Commissioner or such other officer, as aforesaid, is or was, when the tax was imposed, a member of the Committee, the appeal shall lie to the Commissioner of the Division.
Sub section (2) is important.
It provides: "84(2).
If, on the hearing of an appeal under the section, any question as to the liability to, or the principle of assessment of, a tax arises, on which the officer hearing the appeal entertains reasonable dobut, he may, either of his own 470 motion or on the application of any person interested, draw up a statement of the facts of the case and the point on which doubt is entertained, and refer the statement with his own opinion on the point for the decision of the High Court.
" Section 86 mandates that "no objection shall be taken to any valuation or assessment, nor shall the liability of any person to be assessed or taxed be questioned, in any other manner or by any other authority than is provided in this Act.
" From a conjoint reading of sections 84 and 86, it is plain that the Municipal Act, gives a special and particular remedy for the person aggrieved by an assessment of tax under this Act, irrespective of whether the grievance relates to the rate or quantum of tax or the principle of assessment.
The Act further provides a particular forum and a specific mode of having this remedy which analogous to that provided in Section 66 (2) of the Indian Income tax Act, 1922.
Section 86 forbids in clear terms the person aggrieved by an assessment from seeking his remedy in any other forum or in any other manner than that provided in the Municipal Act.
It is well recognised that where a Revenue Statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all other forums and modes of seeking it are excluded.
Construed in the light of this principle, it is clear that sections 84 and 86 of the Municipal Act bar, by inevitable implication" the jurisdiction of the Civil Court where the grievance of the party relates to an assessment or the principle of assessment under this Act.
In the view we take, we are fortified by the decision of this Court in Firm Seth Radha Kishan vs Administrator, Municipal Committee, Ludhiana, (supra) wherein sections 84 and 86 of this very Punjab Municipal Act, 1911 came up for consideration.
Therein, the Municipal Committee, Ludhiana, imposed a terminal tax on Sambhar salt and assessed the appellant, therein, to a sum of Rs. 5,893/ towards that tax at the rate of Rs. 10/ per maund under item 69 of the Government Notification by which the terminal tax was imposed.
The assessee filed a suit against the Municipal Committee in the Civil Court, contending that Sambhar salt ought to have been assessed at the rate of 3 pies per maund under item 68, that he had been illegally assessed under item 69 at the higher rate, and claimed refund of the amount paid by him, with interest.
The Committee, inter alia, contended that Sambhar salt was not common salt, and the Civil Court had no jurisdiction to entertain the suit.
The trial court held that Sambhar salt was common salt within the meaning of item 68 of the Schedule, that 471 the imposition of tax on it under item 69 of the Schedule was illegal, and, therefore, the Civil Court had jurisdiction to hear and determine the suit by virtue of section 9 of the Code of Civil Procedure.
On appeal, the High Court held that the Civil Court had no jurisdiction, and dismissed the suit.
The assessee came in appeal to this Court by certificate granted by the High Court, and contended that since the impugned levy was not made under the Municipal Act but in derogation thereof, the Civil Court had jurisdiction to entertain and determine the suit.
Delivering the judgment of the Court, Subba Rao, J. (as he then was) repelled this contention, observing that the rate of the tax to be levied depended upon the character of the salt, and it was not possible to say that in ascertaining this fact the authorities concerned travelled outside the provisions of the Municipal Act, even if they wrongly applied item 69 of the schedule; that the mistake in applying the wrong item of the Schedule to the tax could be corrected only in the manner prescribed by the Act, and the aggrieved person cannot file a suit in the Civil Court in that regard, the Civil Court 's jurisdiction having been excluded by the provisions of Sections 84 and 86 of the Act.
The Court distinguished that class of cases where the Municipal Committee in levying a tax or committing an Act, clearly acts outside or in abuse of its powers under the Municipal Act, and explained that it is only in such cases, the bar to the jurisdiction of the Civil Court would not apply.
Can the case before us be said to belong to that class of cases where the Municipal Committee in levying a Tax acts beyond or in abuse of its powers under the Act ? The answer to this question must be in the negative.
By no stretch of imagination, can it be said in the facts and circumstances of the case, that in assessing the appellants, individually, and not collectively, to the tax in question, the Municipal Committee abused its powers under the Act.
We have already discussed and held that in levying this tax, the Municipal Committee did not travel beyond or act contrary to the provisions of Section 61(1)(b) of the Act.
In short, the present case is one where the Municipal Committee acted "under the Act".
It follows, therefore, that the Civil Court 's jurisdiction to entertain and decide the suit was barred, even if the dispute raised therein related to the principle of assessment to be followed.
For the foregoing reasons, the appeal fails and is dismissed with costs.
V.D.K. Appeal dismissed.

Output:
Under section 61(1)(b) of the Punjab Municipal Act, 1911 the respondent by its Notification dated May 15, 1946 levied a profession tax of Rs. 15/ per annum on each of the partners of a firm.
Bharat Industries Chheharta i.e. the appellants in the appeal.
By the Notification dated July 4, 1958 the tax was raised to Rs. 200/ per annum.
The validity of the demand made by the respondent at the rate of Rs. 200/ from each of the partners of the firm was challenged, pleading that the Municipal Committee in levying the tax on the individual partners had exceeded its statutory powers under section 61(1)(b) of the Municipal Act in as much as the term 'person ' occurring in section 61(1)(b) of the Punjab Municipal Act, 1911, construed in the light of the definition given in section 2(40) of the Punjab General Clauses Act included a 'firm ' and since the trade carried on by the firm is one, the tax could be levied only on the firm, and not on the partners individually.
The Trial Court dismissed the suit.
First appellate court reversed the decree and the High Court in Second Appeal confirmed it.
A Letters Patent Appeal, preferred by the respondent was allowed and the Trial Court 's decision dismissing the suit was restored.
Dismissing the appeal by special leave, the Court ^ HELD: 1.
It is clear, from a plain reading of Section 61(1)(b) that a tax leviable under clause (b) is in terms, a tax on 'persons ', which expression includes natural persons.
Its incidence falls on individuals, who belong to a class practising any profession or art, or carrying on a trade or calling in the municipality.
To hold that persons who are collectively carrying on a trade in the municipality cannot be taxed individually, would be to read into the statute words which are not there.
There are no words in clause (b) or elsewhere in the statute which expressly or by necessary implication, exclude or exempt persons carrying on a trade collectively in the municipality from being taxed as individuals.
To attract liability to a tax under this clause it is sufficient that the person concerned is carrying on a trade in the municipality, irrespective of whether such trade is being carried on by him individually or in partnership with others.
[467G, 468H, 469A B] 2 'Partnership ' as defined in Section 4 of the , is the relation between persons who have agreed to share the profits of a business carried on by all or any of them for the benefit of all.
A firm or partnership is not a legal entity separate and distinct from the partners.
Firm 464 is only a compendious description of the individuals who compose the firm.
The business being carried on by all or any of the partners, all of them are jointly and severally responsible for the liabilities incurred in the course of the business as each one is considered as an agent of the other.
Such partners can be taxed as persons, in their individual.
[468 D H] 3.
In order to be authorised a tax under clause (b) of Section 61(1) must satisfy two conditions: First, it must be a tax on persons.
Second, such persons must be practising any profession or art or carrying on any trade or calling in the municipality.
Both the conditions necessary for levying a tax under clause (b) of sub section (1) of Section 61 of the Municipal Act existed in this case.
The appellants are 'persons ' and they are carrying on a trade in Chheharata Municipality.
[467H, 468A C] 4(i) Where a Revenue Statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all other forums and modes of seeking it are excluded.
[470D E] (ii) From a conjoint reading of sections 84 and 86, it is plain that the Municipal Act, gives a special and particular remedy for the person aggrieved by an assessment of tax under this Act, irrespective of whether the grievance relates to the rate or quantum of tax or the principle of assessment.
The Act further provides a particular forum and a specific mode of having this remedy, which is analogous to that provided in Section 66(2) of the Indian Income tax Act, 1922 Section 86 forbids in clear terms the person aggrieved by an assessment from seeking his remedy in any other forum or in any other manner than that provided in the Municipal Act.
Therefore, Sections 84 and 86 of the Municipal Act bar by inevitable implication, the jurisdiction of the Civil Court where the grievance of the party relates to an assessment or the principle of assessment under the Act.
[470B D, E F] (iii) In the facts and circumstances of the case, it is clear (a) that in assessing the appellants individually, and not collectively to the tax in question, the Municipal Committee did not abuse its powers under the Act, (b) in levying the profession tax it did not travel beyond or act contrary to the provisions of sections 61(1)(b) of the Act, and (c) that the Committee acted under the Act.
The Civil Courts jurisdiction, therefor, to entertain and decide the suit was barred.
[471E G] Firm Seth Radhakishan vs Administrator, Municipal Committee, Ludhiana ; followed.


Input:
Appeal No. 266 (NT) of 1980.
From the Judgment and Order dt 14.12.1979 of the Allahabad High Court in Sales Tax Rev. No. 214 of 1979.
Harish N. Salve, P.P. Singh and Ms. Meenakshi Grover for the Appellant.
R.C. Verma and Ms section Mukherjee for R.B. Misra for the Respondent.
The Judgment of the Court was delivered by YOGESHWAR DAYAL, J.
This appeal is directed against the judgment of the Single Judge of the Allahabad High Court passed in Sales Tax Revision No. 214 of 1979 dated 14th December, 1979.
By the impugned judgment the High Court set aside the order of the Judge (Revisions), Sales Tax, U.P. Lucknow holding that the Phosphorous Bronze which the assessee/appellant herein have been manufacturing, fell within the ambit of Notification No. ST II 333/X 10121971 dated the 15th November, 1971 issued in exercise of the powers under the second proviso to sub section (2) of section 3 A of the U.P. Sales Tax Act, 1948 (U.P. Act No.
XV of 1948), and took the view that the relevant entry at serial No. 2(a) of the said Notification did not cover the goods prepared by the appellant herein and was thus liable to be taxed as an unclassified commodity at the rate of 3.5%.The relevant entry reads as under: SI.
No. Description of goods Rate of tax 1. . . . 2. (a) Copper, tin, nickel or zinc 1 per cent.m or any other alloy containing any of these metals only.
(b). . . .
The contention on behalf of the appellant is that Phosphorous Bronze manufactured and marketed by them is covered under the aforesaid entry.
According to the appellant the said Phosphorous Bronze is made of tin and copper only.
It is further contended on behalf of the appellant that the small quantity of Phosphorous is used to deoxidise the metal and as such the Phosphorous is not an 721 essential substance of Phosphorous Bronze.
It is, however, admitted case of the parties that without the use of Phosphorous the Phosphorous Bronze cannot be produced and certain quantity of Phosphorous still remains in the Phosphorous Bronze.
The contention of the respondent is that Phosphorous Bronze is an alloy containing not only the metals mentioned in the aforesaid entry but Phosphorous also and as such it is not covered under the aforesaid entry.
The words "other alloy containing any of these metals only" mean that the alloy made of these metals i.e. copper, tin, nickel or zinc only and that alone is covered under the said entry.
It was submitted that if any other metal or substance is included in such an alloy, the same would not be covered under the aforesaid entry.
A similar question arose in the case of Commissioner of Sales Tax, U. P. vs Hindustan Metal Works, Hathras reported in (1964) 15 Sales Tax Cases 97 wherein it was held as under: "The Notification exempts tax on sale of alloys prepared from the solution of two or more of the metals enumerated therein.
On account of the word "only" the sale of an alloy prepared from the solution of two or more of those metals and some other substance or substances would not be exempt from tax.
The assesse sold an alloy called phosphorous bronze which was prepared from the solution of copper, tin, phosphorous and lead.
Phosphorous and lead are not mentioned in the notification.
They are deliberately added by the assessee as per agreement between the parties.
The sale is, therefore, prime facie liable to be taxed.
" We were referred to various dictionary meanings of the words Phosphorous Bronze 'which have been noticed by the learned Judge dealing with case in the High Court.
We are really concerned with the interpretation of the entry.
The emphasis in the entry is either it should be pure copper, tin, nickel or zinc and if it is an alloy containing two or more metals, it must be an alloy containing these metals only.
The expression "only" is very material for understanding the meaning of the entry.
Since the alloy in dispute contains Phosphorous, may be in a very small quantity, it cannot fall within entry 2(a) of the aforesaid Notification.
The appeal consequently fails and is dismissed with costs.
U.R. Appeal dismissed.

Output:
By Notification No. ST 11 333/X 1012 1971 dated 15 November 1971, entry 2(a) copper, tin, nickel, zinc or any other alloy containing any of these metals only were made exigible at a reduced rate of sales tax of I The Judge (Revisions) Sales Tax, U.P., Lucknow held that phosphorous bronze falls within this notification.
The Single Judge of the Allahabad High Court took a contrary view and held that it was taxable as an unclassified commodity at 3.5%.
Before this court it was contended that phosphorous bronze is made of tin and copper only; that a small quantity of phosphorous is used to deoxidize the metal and that it is not an essential substance of the phosphorous bronze.
It was, however, admitted that without the use of phosphorous, phosphorous bronze cannot he produced, and a certain quantity remains in the phosphorous bronze.
Dismissing the appeal, this Court, HELD: (1) The emphasis in the entry is that it must contain, even if an alloy, "only" copper, tin, nickel or zinc.
The expression "only" is very material for understanding the meaning of the entry.
Since the alloy in dispute contains phosphorous, may he in a very small quantity, it cannot fall within entry 2(a) of the notification.
(721 G) Commissioner of Sales Tax vs Hindustan Metal Works (1964) 15 STC 97 720 referred to.


Input:
Appeal No. 1499 of 1971.
Appeal from the judgment and order dated August 23, 1971 of the Delhi High Court in Civil Writ Petition No. 517 of 1971.
M. C. Chagla and R. Gopalakrishnan, for the appellants.
Jagadish Swarup, Solicitor General of India, G. L. Sanghi, B. D. Sharma and section P. Nayar, for respondents Nos. 1 and 2.
A. K. Sen and H. K. Puri, for respondents Nos. 15, 39 to 48, 51, 103 and 123.
J. D. Jain, for respondent No. 55.
The Judgment of the Court was delivered by Ray, J.
This in an appeal by certificate from the _judgment dated 23 August, 1971 of the High Court of Delhi dismissing the writ petitions of the appellants.
The two appellants were promoted in the years 1958 and 1959 respectively to the Military Engineer Service Class I (hereinafter referred to as the Class I Service).
The appellant No. 1 _joined the Military Engineer Service as a temporary overseer on 1 May, 1942.
He was promoted to the grade of Superintendent Grade I on 1 May, 1949.
In the month of April, 1957 he was selected to be promoted to the grade of temporary Assistant Executive Engineer in Class I Service and he was promoted in fact in the month of April, 1958.
Respondents Nos.
4 to 21, 107 to 122 and 124 to 126 were appointed to the said Class I Service after they had appeared at competitive examination while the rest were appointed by direct recruitment after having been interviewed by the Union Public Service Commission.
All the respondents were appointed to the said Class I Service in the years 1962, 1963 and 1964.
The appellants contended first that the respondents who were directly appointed to Class I Service by interview were not within the purview of recruitment to Class I Service by competitive examination.
The Military Engineer Service Class I (Recruitment, 900 Promotion and Seniority) Rules which came into force on 1 April, 1951 speak in rule 3 of recruitment to the Class I Service (,a) by competitive examination in accordance with Part 11 of the Rules and (b) by promotion in accordance with part III of the Rules The appellants contended that appointment to Class I Service by interview was not one of the methods recruitment contemplated in the Rules, and, therefore, the respondents who were appointed by interview could not be said to be validly appointed in accordance with the Rules.
The second contention of the appellants was that the respon dents were recruited to Class I Service by interview and competitive examination after the appellant had been promoted to Class I Service and were therefore not to be confirmed in permanent posts before the appellants.
Class I Rules mention recruitment by competitive examination and by promotion.
In 1961 on the results of the competitive examination no candidates were avail able for allotment to Class I Service against temporary posts.
In 1962 there was a state of emergency.
Engineers were immediately required to fill the temporary posts in Class I Service.
To meet the emergency the Union Government in consultation with the Union Public Service Commission decided to recruit candidates by advertisement and selection by the Union Public Service Commission.
The Government with the aid of selection and interview by the Union Public Service Commission directly recruited some respondents to Class I Service in the years 1962, 1963 and 1964.
The candidates were selected after viva voce examination.
It, therefore, follows that the method of recruitment by interview was adopted to meet the emergency specially when the mode of appointment by competitive exammation failed.
The candidates who were selected were put through a period of probation of 2 years.
Only on a satisfactory completion of probation the candidates were allowed to continue in service.
On completion of 3 years continued service in the grade and after qualifying the necessary departmental test the respective officers were declared quasipermanent in the grade in terms of Central Civil Service (Temporary Service) Rules.
During the years 1962, 1963 and 1964 particularly and until the year 1969 the Class I Service Rules were not statutory in character.
The Union Government relaxed the Rules both in regard to recruitment by interview and in regard to the quotas fixed by the Rules for direct recruitment and recruitment by promotion to Class I Service.
In the year 1967 rule 20 of Part II of Class I Service Rules was amended by introduction of sub rules (h), (i), (i) and (k).
901 Rule 20 referred to the period of probation in the case of recruitment by competitive examination: Sub rule (i) stated that "50 per cent of the permanent vacancies to be filled through the competitive ad hoc recruitment conducted by the Commission after 17 May, 1963, shall be reserved for graduates engineers who are commissioned in the Armed Forces on a temporary basis during the present emergency and later released," subject to certain conditions enumerated therein.
Rule 24 was also introduced by way of amendment in the year 1967.
Rule 24 occurs in Part IV of the Rules.
It may be stated here that Part 11 of the Rules deals with recruitment to Class I Service by competitive examination, Part HI with recruitment to Class I Service by promotion and Part IV deals with miscellaneous Rules.
Rule 24 stated that where the Central Government was of opinion that it was necessary or expedient so to do, it might by order, for reasons to be recorded by it in writing and after consultation with the Union Public Service Commission relax all or any of the rules with respect to any class or category of persons or posts.
In 1969 the Class I Service Rules were amended.
The impor tant amendments were rule 4 and substitution of rule 21 in place of rules 21, 22 and 23.
Rule 4 dealt with the quotas fixed for direct recruitment and promotion to Class I Service.
The substituted rule 21 stated that appointment by promotion was to be made by selection and promotion was not to be as a matter of right.
The real importance of the amendments of the rules in the year 1969 lies in the fact that the amendments were made by the President in exercise of the powers conferred by the proviso to Article 309 ' of the Constitution.
As a result of the 1969 amendment it follows that the entire body of rules of Class I Service became statutory rules by incorporation.
The appointments to Class I Service by interview were made by the Government in consultation with the Union Public Service Commission.
The selection was made by the Union Public Service Commission.
The appointments by competitive examination proved fruitless.
The country was in a state of emergency.
Appointment and selection by interview was the only course possible.
It could not be said that all appointments should have been made by promotion.
That would be not in the interest of the Service.
The Service Rules were administrative in character.
The Government relaxed the rules.
The amendments of the rules in 1967 recognised the reality of the situation of appointment by interview.
That is why the 1967 amendment recognised that 50 per cent of "the direct recruits by competitive/ad hoc appointment were to be reserved for graduate engineers who were commissioned in the Armed Forces on a temporary basis.
" 902 on a temporary basis.
" Ultimately, when the rules were, amended in 1969 and the rules became statutory in character not only the recruitment by interview but also the relaxation of rules was regularised.
The result is that the respondent who were appointed by interview fell within the class of direct recruits.
The only other contention on behalf of the appellants was that they were promoted to Class I Service in the years 1958 and 1959 respectively and were thus senior to the respondents who were recruited to the Service subsequently, and, therefore, the appellants should be confirmed in Class I Service in priority to the respondents.
The promotion of the appellants was to temporary posts in Class I Service.
The appellants were to be confirmed in permanent posts.
The respondents who were appointed by competitive examination and by interview were also appointed to temporary posts.
They were also to be confirmed in permanent posts after having served the period of probation in accordance with the rules.
The recruitment to Class I Service during the years 1951 to 1958 was on the quotas fixed by rule 4 of the Class I Rules on the ratio of 10 per cent for departmental promotion and 90 per cent for direct recruitment.
Though rule 4 fixed the quotas on the ratio of 10 per cent for departmental promotion and 90 per cent for direct recruitment the Union Government in consultation with the Union Public Service Commission relaxed the rules and revised as an interim measure the existing quota of 10 per cent of departmental candidates for promotion to 50 per cent in the years 1959 to 1963 inclusive.
From 1964 to 1968 the quota fixed by rule 4 was followed again.
Finally, in 1969 the rules were amended and the quota for departmental promotion was 25 per cent and for direct recruitment at 75 per cent.
In this background the recruitment against temporary posts between the years 1951 and 1971 was indicated by a chart prepared by the Government and accepted to be correct.
The recruitment against temporary posts indicated the following features Between 1951 and 1956 the total recruitment against temporary posts was 84 whereof 75 were allocated for direct recruits and 9 for departmental promotees.
But in fact the recruitment by interview was for 29 and by departmental examination.
During the years 1957 and 1963 the number of vacancies for recruitment to temporary posts was 675 whereof 339 were allocated for direct recruits and 336 for departmental promotees.
Only 20 were recruited by competitive examination and 171 by interview and the remaining 484 were instances of departmental promotion.
Be tween the years 1964 and 1968 the total recruitment was 264 whereof 238 were allocated for direct recruits and 26 for departmental promotees.
In fact, recruitment was of 139 persons by 903 competitive examination and of 98 by interview and 27 'by departmental promotion.
Between the years 1969 and 1971 there were 45 vacancies to temporary posts whereof 33 were allocated for direct recruits and 12 for departmental promotees.
I were recruited by competitive examination and 34 were promoted departmentally.
The recruitment against temporary posts during the years 1951 and 1971 shows that during the relevant years 1959 to 1963 the Union Government relaxed the quota and increased the quota of 10 per cent to 50 per cent for departmental promotion.
At cannot therefore be said that any injustice was done to the departmental promotees or that any advantage was gained by the persons who were recruited by interview.
It is because of the conditions of emergency that the quota for filling the temporary posts was half for departmental promotees and half for direct recruitment.
The confirmation against permanent posts was also in according ance with the quotas fixed by rule 4 for the years 1951 to 1958, namely, 10 per cent for departmental promotion and 90 per cent for direct recruitment.
During the years 1959 to 1963 inclusive the Union Government in consultation with the Union Public Service Commission relaxed the quota rule and increased the quota for departmental promotees from 10 per cent to 50 per cent and reduced the quota of direct recruitment from 90 per cent to 50 per cent.
In the year 1959 126 permanent posts were available whereof 63 were allocated for direct recruits and the other 63 were for departmental promotees.
In 1960 there were 14 permanent posts and 7 were allocated for direct recruits and 7 for departmental promotees.
Again, in 1961 there were 23 permanent posts available.
12 were allocated for direct recruits and 11 for departmental promotees.
For 1962 there were 20 permanent posts whereof 10 were allocated for direct recruits and the other 10 for departmental promotees.
In 1963 there were 11 permanent posts whereof 5 were allocated for direct recruits and 6 for departmental promotees.
In 1964 there were 9 permanent posts whereof 8 were allocated for direct recruits and one for departmental promotee.
In 1965 there were 15 permanent posts whereof 13 were allocated for direct recruits and two for departmental promotees.
In 1966 there were 113 permanent posts whereof 82 were allocated for direct recruits and 11 for departmental promotees and 20 for released officers in accordance with the revised rule in the year 1967.
In 1967 there were 45 permanent posts whereof 40 were allocated for direct recruits and 5 for departmental promotees.
In 1968 there were 14 permanent posts available whereof 13 were allocated for direct recruits and one for departmental promotee.
The position with regard to filling of permanent posts shows that during the years 1951 to 1958 the quota was 10 per cent for 904 departmental promotees and 90 per cent for direct recruitment but during the years 1959 to 1963 the quota was changed with the result that half of the permanent posts were filled by departmental promotion and the other half by direct recruitment.
From 1964 to 1968 the old quota of 10 per cent for departmental promotion and the remaining 90 per cent for direct recruitment was resorted to.
In 1969 rule 4 was changed 'with the result that there were 25 per cent for departmental promotion and the remaining 75 percent for direct recruitment.
In the year 1959 the direct recruits who were confirmed in permanent posts were recruited by the Union Public Service Commission by interview during the years 1951 to 1956.
In 1960 the direct recruits through interview who were confirmed had been selected through interview by the Union Public Service Commission between the years 1953 and 1956.
In 1961 the direct recruits who were confirmed in permanent posts were those who had been selected by the Union Public Service Commission through interview during the years 1956 to 1957.
In 1962 the direct recruits who were confirmed in permanent posts were those who had been selected by the Union Public Service Commission through interview during the years 1956 to 1958.
In 1963 the direct recruits who were confirmed in permanent posts were those who had been selected by the Union Public Service Commission through interview between the years 1958 to 1961.
In 1964 the direct recruits who were confirmed in permanent posts were those recruited in 1962 by the Union Public Service Commission through interview.
In 1965 the direct recruits who were confirmed in permanent posts were those recruited by the Union Public Service Commission through interview in 1962 and 1963.
In 1965 13 direct recruits were confirmed and they included some of the respondents.
In 1966 82 direct recruits were confirmed against permanent posts and they were persons who had been selected by the Union Public Service Commission through interview during the year 1963 and they included some of the respondents.
In the year 1959 when the Government in consultation with the Union Public Service Commission revised as an.
interim measure the increase of the quota of departmental promotion of candidates from 10 to 50 per cent and followed that system up to the end of 1963 a question arose as to how the then existing permanent vacancies were to be filled and the Union Public Service Commission advised that the same might be filled by confirmation of direct recruits, namely, those recruited on the basis of competitive examination and by advertisement and selection and promotees in the ratio of 11.
The advice of the Union Public Service Commission was accepted and the Departmental Promotion Committee acted on that basis.
It is apparent that during those years there was a relaxation in the observance of rules in the case of appellants and the other departmental promotees.
The Union Government 905 all throughout acted in consultation with the Union Public Service Commission.
The departmental promotees gained considerable advantage by relaxation of the rules.
The direct recruits were not shown any preference at all.
The proportion of confirmation of departmental promotees and of direct recruits by interview was 1 : 1 In the year 1967, the Government was again faced with the question of confirmation of direct recruits by interview as well as by competitive examination against permanent vacancies in the grade falling in the direct recruitment quota prescribed in the rules.
The Union Public Service Commission advised that direct recruits by interview and by competitive examination could be confirmed against permanent vacancies within the fixed quota of direct recruits.
The result was that in 1969 the Class I Service Rules were amended and the quota for departmental promotion was raised from 10 to 25 per cent and the quota of direct recruits was reduced from 90 to 75 per cent.
The appellants can have no grievance with regard to confirmation.
The departmental promotees have been confirmed against permanent posts within their quota in order of seniority.
Departmental promotees who have been confirmed up to the year 1970 had been promoted to Class I Service before the appellants.
On the other hand, direct recriuts consisting of those recruited by competitive examination as well as by interview have been confirmed against permanent vacancies within their quota.
As a matter of fact between the years 1959 and 1963 inclusive the quota fixed for departmental promotees was increased from 10 to.50 per cent and thereby the confirmation of departmental promotees and direct recruits was equally balanced.
The direct recruits who were appointed by interview fell within the class of direct recruits.
The quota fixed for direct recruits was never infringed by absorbing direct recruits by interview beyond the quota.
The confirmation of direct recruits and departmental promotees against permanent vacancies was in accordance with the quota fixed.
By reason of relaxation of rules in regard to increase of quota for departmental promotees they gained advantage during the years 1959 to 1963 when because of the emergency direct recruits by interview were selected by the Union Public Service Commission.
For the foregoing reasons the appeal fails and is dismissed.
In view of the fact that there was no order as to costs in ' the High Court parties will bear their own costs.
G.C. Appeal dismissed.

Output:
The two appellants were promoted in the years 1958 and 1959 respectively to the Military Engineer Service Class 1.
Some of the respondents were appointed to the said class I Service after they had appeared at the competitive examination while the rest were appointed by direct recruitment after having been interviewed by the Union Public Service Commission.
All the respondents were appointed to the service in the years 1962, 1963 and 1964.
The respondents were confirmed in their posts before the appellants.
The appellants filed writ petitions in the High Court which were dismissed.
In appeal before this Court the appellants contended (i) that the respondents who were directly appointed to class I service by inter view were not within the purview of recruitment to Class I service by competitive examination under the Military Engineer Service Class I (Recruitment Promotion and Seniority) 'Rules; (ii) that the respondents were recruited to Class I Service by inter view and competitive examination after the appellant had been promoted to Class I service and were therefore not to be confirmed in permanent posts before the appellants.
HELD : (i) The appointments to Class I Service by interview were made by the Government in consultation with the Union Public Service Commission.
The selection was made by the Union Public Service Commission.
The appointment by competitive examination proved fruitless.
The country was in a state of emergency.
The appointment and selection by interview was the only course possible.
It could not be said that all appointments should have been made by promotion; that would not he in the interest of the service.
The Service Rules were administrative in character.
The Government relaxed the rules.
The amendments of the rules in 1967 recognised the reality of the situation of appoint ment by interview.
That is why the 1967 amendment recognised that 50% of "the direct recruit by competitive ad hoc appointments were to be reserved for graduate ceneers who were commissioned in the Armed Forces on a temporary basis Ultimately, when the rules were amended in 1969 and the rules became statutory in character, not only the recruitment by interview but also the relaxation of rules was regularised.
The result is that the respondents who were appointed by interview fell within the Class I direct recruits.
[901 F 902 A] (ii) The appellants should have no grievance with regard to confirmation.
Departmental promotees had been confirmed against permanent posts within their quota in order of seniority.
The departmental promotees who had been confirmed up to the year 1970 had been promoted to 899 class I Service before the appellants.
On the other hand direct recruits consisting of those recruited by competitive examination as well as by inter view had been confirmed against permanent vacancies within their quota.
As a matter of fact between the years 1959 and 1963 inclusive the quota fixed for departmental promotees was increased from 10 to 50% and thereby confirmation of departmental promotees and direct recruits was equally balanced.[905 D F] Accordingly, the appeal must fail;


Input:
Criminal Appeal No. 54 of 1963.
Appeal by special leave from the judgment and order dated September 13, 1962, of the Allahabad High Court in Criminal Appeal No. 877 of 1962 and Referred No. 79 of 1962.
O. P. Rana, for the appellant.
G.C. Mathur and C. P. Lal, for the respondent.
May 10.
The judgment of the Court was delivered by SHAH J.
The appellant Kirpal Singh and his two brothers Arjun Singh and Sarwan Singh, 994 were tried by the Sessions judge, Pillibhit for causing the death of one Karam Singh with gunshot injuries in the evening of March 26, 1961 at Village Shanti Nagar.
The Sessions judge acquitted Arjun Singh and Sarwan Singh and convicted the appellant Kirpal Singh of the offence charged against him and sentenced him to suffer the penalty of death subject to confirmation by the High Court.
The High Court of Allahabad confirmed the order of conviction and sentence.
With special leave, Kirpal Singh has appealed to this Court.
The case for the prosecution was as follows The appellant and his father in law Rakkha Singh were refugees from West Pakistan.
A block of agricultural land, allotted by the Government to Rakkha Singh and the appellant was partitioned but no boundary marks were erected on the line dividing the lands.
In December 1960 there was a dispute between Rakkha Singh on the one hand and the appellant and his brothers on the other about the harvesting of sugarcane planted in the land.
This dispute was settled on the intervention of one Sardar Ajit Singh, and Rakkha Singh agreed to give seven hundred maunds of sugarcane to the appellant and his brothers.
The appellant and his brothers went to the house of Rakkha Singh on March 22, 1961 and complained that they were not given four hundred maunds of sugarcane out of the seven hundred maunds promised to them.
There was a quarrel on that occasion between Karam Singh eldest son of Rakkha Singh and the appellant, the former saying that the appellant and his brothers were "behaving like dishonest persons '.
Rakkha Singh intervened and nothing untoward happened on that occasion.
On March 26, 1961 at about 6 p.m. when Rakkha Singh and his two sons Karam Singh and Manjit Singh and their neighbour Sardar Anokh Singh were sitting in a thatched hut, the appellant 995 armed with a gun, and his two brothers armed with lathis arrived near the hut, and the appellant shouted to Karam Singh asking him to come out of the hut.
On Karam Singh 's emerging from the hut the appellant told him that since he (Karam Singh) "did not settle the dispute regarding the sugarcane he would settle his account just then", and opened fire causing injuries to Karam Singh on the chest which resulted in death instantaneously.
On hearing the report of gun fire Rakkha Singh, his son Manjit Singh and Sardar Anokh Singh came out of the thatched hut.
Manjit Singh tried to catch hold of the appellant and his brothers but without success.
Rakkha Singh then went to the police station Puranpur and lodged the first information at 7 45 a.m.
At the trial of the appellant and his brothers before the Court of Session, Manjit Singh, Anokh Singh and Rakkha Singh were examined as persons who were present at the scene of offence and witnessed the assault on Karam Singh.
Manjit Singh and Anokh Singh however did not support the prosecution case.
They stated that at about 8 or 9 p.m. on March 26, 1961 when they were in their respective houses they heard report of gun fire and on coming out came to learn from some person that Karam Singh was fired upon by 'some Sardar who was wearing a mask '.
The witnesses were cross examined by the prosecutor with leave of the Court in the light of their statements recorded by the sub inspector of police in the course of his investigation but they denied having made the statements that the appellant and his two brothers had come to Shanti Nagar at 6 p.m. on the day of occurrence and that the appellant had killed Karam Singh by causing him gunshot injuries.
But Rakkha Singh supported the prosecution case.
He spoke about the dispute about sugarcane, and also about the quarrel between Karani Singh and the appellant on March 22, 1961.
He then stated that on March 26,1961 at about 6 p.m. the appellant and his two brothers had 996 come near his hut, that the appellant had called out Karam Singh and after shouting that as Karam Singh was not settling the matter of sugarcane they "were going to settle his matter" had fired a shot killing Karam Singh instantaneously.
In cross examination he stated that from the hut in which he was sitting he could not see the faces of the assailants but on hearing the report of gun fire he came out of the hut and saw the assailants running away, and that he was able to recognise them by "their gait and voice".
The learned Sessions judge accepted the testimony of Rakkha Singh and, in so for as it inculpated the appellant, convicted him of the offence of causing the death of Karam Singh.
He however held that the two brothers of the appellant were not proved to be guilty of the offence charged against them and acquitted them.
The High Court of Allahabad agreed with the finding recorded by the Court of First Instance and confirmed the sentence of death passed against the appellant.
The conclusion recorded by the Court of First Instance and affirmed by the High Court is based upon appreciation of evidence and no question of law arises therefrom.
Normally this Court does not proceed to review the evidence in appeals in criminal cases, unless the trial is vitiated by some illegality or irregularity of procedure or the trial is held in a manner violative of the rules of natural justice resulting in an unfair trial or unless the judgment under appeal has resulted in gross miscarriage of justice.
Rakkha Singh deposed that he had been able to recognise the appellant from his "voice and gait".
Rakkha Singh was the father in law of the appellant, and had during the last few days before the death of Karam Singh seen the appellant frequently.
Only four days before the incident there was a quarrel between Kararn Singh and the appellant about the 997 delivery of sugarcane crop and the appellant and his brothers had retired from the scene at the intervention of Rakkha Singh, greatly annoyed.
It is true that the evidence about identification of a person by the timbre of his voice depending upon subtle variations in the overtones when the person recognising is not familiar with the person recognised may be somewhat risky in a criminal trial.
But the appellant was intimately known to Rakkha Singh and for more than a fortnight before the date of the offence he had met the appellant on several occasions in connection with the dispute about the sugarcane crop.
Rakkha Singh bad heard the appellant and his brothers calling Karam Singh to come out of the hut and had also heard the appellant, as a prelude to the shooting referring to the dispute about sugarcane.
In the examination, in chief Rakkha Singh has deposed as if he had seen the actual assault by the appellant, but in cross examination he stated that he had not seen the face of the assailant of Karam Singh.
He asserted however that he was able to recognize the appellant and his two brothers from their 'gait and voice '.
It cannot be said that identification of the assailant by Rakkha Singh, from what he heard and observed was so improbable that we would be justified in disagreeing with the opinion of the Court which saw the witness and formed its opinion as to his credibility and of the High Court which considered the evidence against the appellant and accepted the testimony.
Manjit Singh and Anokh Singh have tried to shield the appellant by deposing that the assault took place at about 9 p.m. and that they were informed that the assailant had put on a mask.
Their statements recorded in the course of investigation were inconsistent with the tenor of their evidence in Court.
It is true that there was some delay in lodging the first information, the offence took place according to Rakkha Singh at 6 p.m. ,on March 26, 1961 and 998 information at the police station Puranpur was lodged at 7.45 a.m. on March 27, 1961.
The distance between the police station and the village Shanti Nagar, as the crow flies, is about 15 miles but by the public transport system one has to take a long detour to reach Puranpur Police Station.
Rakkha Singh says that to avoid delay and to secure the presence of a Police Officer he secured a jeep from Sampurna Nagar Union and proceeded to the police brought the sub inspector of police to in the same jeep.
We do not think, station and santi Nagar having regard to the circumstances, that there has been any such gross delay in lodging the first information as would justify us in throwing doubt on the truth of the story of Rakkha Singh.
It appears that there are two police outposts near Shanti Negar one at a distance of about two miles and another at a distance of five miles but the officer in charge of the police outposts had, it is conceded by counsel for the appellant, no authority to record a first information.
Rakkha Singh desired to lodge a complaint About the commis sion of the offence of murder, he was not apprehensive of any violence at the hands of the appellant and his brothers, and if he did not contact the officer at the police outposts, who could not record his complaint, no fault can be found.
against him.
The postmortem examination of the stomach contents of Karam Singh disclosed that there was 8 ozs.
of half digested food and that indicated that the death was caused some two hours after the last meal was taken by Karam Singh; Counsel for the appellant said that the condition of the stomach supported the version of Manjit Singh and Anokh Singh, but Rakkha Singh has deposed that Karam Singh had taken at about 4 p.m. tea and pakadas.
That explains the presence of ' half digested food in the stomach.
The case for the prosecution undoubtedly depends for its support upon the testimony of a single witness, who did not claim to have identified 999 the assailant by seeing his face.
But we do not think that is a circumstance which would justify us in departing from the rule normally followed by this Court.
The offence was committed when there was sufficient daylight : the assailant was intimately known to Rakkha Singh and the witness had heard the appellant 's voice speaking about the dispute which was pending between him and the appellant.
We do not think that the circumstance that Rakkha Singh had not seen the face of the appellant when the latter was running away is a ground for discarding his testimony.
The conviction of the appellant must therefore be confirmed.
Sentence passed by the Trial Court is, in the circumstances of the case the only appropriate sentence.
Before parting with the case, we think it necessary to observe that the committing Magistrate in this case erred in committing the accused to the Court of Session without recording the evidence of all the witnesses to the actual commission of the offence, Under the Code of Criminal Procedure as amended by Act 26 of 1955, the Magistrate holding committal proceedings is required to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged, and if the Magistrate is of opinion that it is necessary in the interest of justice to take the evidence of any one or more of the other witnesses for the prosecution, he may take such evidence also: section 207A (4).
The Magistrate has in the enquiries relating to charges for serious offences like murder the power and indeed a duty in the interest of the accused, as well as in the larger interest of the public to record the evidence of other witnesses who throw light on the case.
Examination of witnesses to the actual commission of the offence should in inquiries, for committal on charges for such serious offences, be the normal rule.
The prosecutor is expected ordinarily to examine in the Court of the 1000 committing Magistrate all witnesses to the actual commission of the offence: if without adequate reasons he fails to do so, the Magistrate is justified and in enquiries on charges for serious offences is under a duty to call witnesses who would throw light upon the prosecution case.
Before the Code was amended by Act 26 of 1955 it was necessary for the Magistrate holding the inquiry to record the evidence of all the important witnesses.
With a view to shorten delays in the proceeding preliminary to bringing the accused to trial, the Legislature has by enacting section 207A conferred a discretion upon the Magistrate in the matter of examination of witnesses not produced by the prosecutor.
Exercise of that discretion must be judical : it is not to be governed by any set rules or standards, but must be adjusted in the light of circumstances of the case.
The Magistrate is again not to be guided by the attitude of the prosecutor.
He must of course consider the representation relating to the examination of witnesses by the prosecutor, but in considering whether it is necessary in the interest of justice to take evidence of any one or more of the other witnesses for the prosecution, he must have due regard to the nature and gravity of the offence, the interest of the accused and the larger interest of the public, and the defence if any disclosed by the accused.
A Magistrate failing to examine witnesses to the actual commission of the offence because they are not produced, without considering whether it is necessary in the interest of justice to examine such witnesses, in our judgment, fails in the discharge of duties.
There is nothing in the decision of this Court in Sriram vs The State of Bombay (1), which may support the view that in the matter of examination of witnesses, especially in the inquiry relating to serious charges like murder and culpable homicide, the Magistrate is to be guided by the prosecutor.
It is (1) [1961]2 S.C.R. 890.
1001 the duty of the Magistrate to examine all such witnesses as may be produced by the prosecutor as witnesses to the actual commission of the offence alleged, but his duty does not end with such examination.
He must apply his mind to the documents referred to in section 173, and the testimony of witnesses, if any, produced by the prosecutor and examined, and consider whether in the interest of justice it is necessary to re.
cord the evidence of other witnesses.
In inquiries relating to charges for serious offences like murder, normally the Magistrate should insist upon the exa mination of the principal witnesses to the actual commission of the offence.
Failure to examine the witnesses may be justified only in exceptional cases.
This is so because the Magistrate in committing a person accused of an offence for trial has to perform a judicial function which has a vital importance in the ultimate trial, and slipshod or mechanical dealing with the proceeding must be deprecated.
The appeal fails and is dismissed.
Appeal dismissed.

Output:
The appellant was convicted by the Sessions judge of the offence of murder of K and sentenced to death, and the con viction and sentence were confirmed by the High Court.
The committal proceedings disclosed that the Magistrate committed the accused to the Court of Session without recording the evidence of the witnesses to the actual commission of the offence.
Held that under section 207A of the Code of Criminal Pro cedure, 1898, as amended by Act 26 of 1955, a Magistrate., has 993 been given a discretion in the matter of examination of witnesses not produced by the prosecutor.
The prosecutor is expected ordinarily to examine in the court of the committing Magistrate all witnesses to the actual commission of the offence, but if without adequate reasons he fails to do so, the Magistrate is justified and, in enquiries on charges of serious offences like murder, is under a duty to call witnesses who would throw light upon the prosecution case.
A Magistrate failing to examine witnesses to the actual commission of the offence because they are not produced, without considering whether it is not necessary in the interests of justice to examine such witnesses, fails in the discharge of his duties.
The Magistrate must apply his mind to the documents referred to in section 173 of the code and the testimony of witnesses, if any, produced by the prosecutor and examined, and consider whether in the interests of justice it is necessary to record the evidence of other witnesses.
A Magistrate in committing a person accused of an offence for trial has to perform a judicial function which has a vital importance in the ultimate trial, and a slipshod or mechanical dealing with the proceeding must be deprecated.
Shriram Daya Ram vs The State of Bombay, [1961] 2 S.C.R. 890, considered.


Input:
minal Appeal No. 212 of 1967.
Appeal by special leave from the uderstand order dated August 3, 1967 of the Patna High Courtin Criminal Appeal No. 389 of 1965 with Special Leave Petition (Criminal) No. 1048 of 1969 from the judgment and order dated July 14, 1969, of the Patna High Court in Criminal Misc.
No. 411 of 1969.
from the judgment and, order dated July 14, 1969, of the Patna Hi& Court in Criminal Misc.
No. 411 of 1969.
section N. Prasad, for the appellant.
B. P. Jha, for the respondent.
The Judgment of the Court was delivered by Sikri, J.
This appeal by special leave raises the question of the applicability of the rule of issue estoppel.
The appellant, 620 Gopal Prasad Sinha, was tried on a charge under section 409, I.P.C., for having committed criminal breach of trust of Rs. 27,800/during the period between January 31, 1960 and November 30, 1960, while acting as a cashier of the Public Works Department, East Division, Gaya.
The Assistant Sessions Judge framed three points for determination : "1.
If the accused Gopal Prasad Sinha was a Public servant and was working as cashier in the office of the Executive Engineer, P.W.D., Gaya East Division, during the period between 31 1 60 to 30 11 60 ?" 2.
Whether charge amount namely Rs. 27,800/ was entrusted to the accused or he had dominion over it in his capacity as a public servant ? 3.
Whether the accused committed criminal breach of trust in respect of this charge amount ?" The learned Assistant Sessions Judge, after going through the oral and documentary evidence, answered the first point in the affirmative and held that the accused was handling the cash in the office during the aforesaid period as a cashier.
On point No. 2 the learned Assistant Sessions Judge, after considering the oral and documentary evidence, held : "It is proved that the accused was in charge of one key of one of the locks of the door of the iron chest of the office of the Executive Engineer P.W.D., Gaya East Division.
It is also proved that the accused was dealing with the cash of the Division and he was receiving and disbursing money of the Division.
I accordingly hold that the charge money was entrusted to the accused and the accused had dominion over the charge amount of Rs. 27,800/ while acting as cashier of P.W.D., Gaya East Division.
" On point No. 3 he held that "the accused made entries in the cash book showing remittance of the charge amount to sub divisions Nos. 2 and 3 but the same were not actually remitted by the accused nor they were received in sub division Nos. 2 and 3." The point of issue estoppel was raised before him, the point being that the accused was put up on trial in a previous case under section 409, I.P.C., for having committed criminal breach of trust with respect to certain amounts during the period December 8, 1960 to August 17, 1961, and in that case the High Court had acquitted the accused holding that he was not in 621 charge of the cash.
The learned Assistant Sessions Judge held that the aforesaid finding of the High Court could not operate as a res judicata.
The High Court, on appeal in the present case, upheld the findings of fact of the learned Assistant Sessions Judge.
The High Court also repelled the argument regarding rule of issue estoppel thus : "In the earlier case out of which criminal appeal 40 of 1963 arose, the defalcations in question were alleged to have been committed by the present appellant in his capacity as a cashier during the period 8 12 60 to 17 8 61.
As such, the point in issue in that case was whether the accused, that is, the present appellant, was the cashier and was incharge of the cash during the aforesaid period.
In the present case, however, the defalcations in question are alleged to have been committed during an altogether different period, namely, 31 1 60 to 30 11 60 and the point in issue in the present case is whether the appellant was the cashier of the division and was in charge of the cash during this particular period.
The finding of fact as given in the aforesaid appeal that the appellant was not a cashier and was not in charge of the cash must be held as being operative for the period 8 12 60 to 17 8 61 during which the defalcations forming the subject matter of the aforesaid appeal were alleged to have been committed and, as such, those findings cannot in any way operate under the principle of issue estoppel to preclude the prosecution from adducing evidence in the subsequent case, that is, in the present case, to show that the appellant was the cashier of the division and was in charge of the cash during the period 31 1 60 to 30 11 60.
" The learned counsel for the appellant contends that subs tantially it was the same issue that was tried during the earlier trial, and if the accused was not the cashier from December 8, 1960 to August 17, 1961, he could not be held to be a cashier from January 31, 1960 to November 30, 1960.
He said that the defence in both the cases was identical and the evidence also almost the same.
In our opinion, the High Court came to the correct con clusion.
The basic principle underlying the rule of issue estoppel is that the same issue of fact and law must have been determined in the previous litigation.
The question then arises : Was it the same issue of fact which was determined in the earlier 62 2 case ? A person may be acting as a cashier at one period and may not be acting as a cashier at another period, especially as in this case it was found that the appellant had never been appointed as a cashier.
He was a temporary senior accounts clerk who was alleged to be doing the work of a cashier.
If there is any likelihood of facts or conditions changing during the two periods which are under consideration then it is difficult to say that the prosecution would be bound by the finding in a previous trial on a similar issue of fact.
It seems to us that the later finding must necessarily be in contradiction of the previous determination.
There can be no such contradiction if the periods are different and the facts relating to the carrying on of the duties of a cashier are different.
The learned counsel has referred to a number of cases of this Court where the rule of issue estoppel has been approved; e.g. Pritam Singh vs State of Punjab(1); Manipur Administration vs Thokchom Bira Singh (2) ; State of Andhra Pradesh vs Kokkiligada Meeraiah(3); and Assistant Collector of Customs vs L. R. Malwani(4), but these cases do not support the contention of the learned counsel for the appellant.
It appears that the appellant surrendered on December 1, 1961, and in Sessions Trial No. 90 of 1962 he was sentenced to five years ' rigorous imprisonment.
He started serving his sentence on November 15, 1962.
His appeal to the High Court was allowed on October 5, 1964, and thereafter he remained in prison as an undertrial prisoner.
In the present case he was sentenced to six years ' rigorous imprisonment and a fine of Rs. 25,000/ or in default to undergo further imprisonment for 18 months.
In the circumstances given above we consider the sentence of six years in the present case as excessive and reduce it to rigorous imprisonment for three years, and a fine of Rs. 25,000/or in default further imprisonment for 18 months.
In the result the appeal is partly allowed in the matter of sentence, as stated above.
Special Leave Petition (Criminal) No. 1048 of 1969 is accordingly dismissed.
V.P.S. Appeal partly allowed.
(1) A.I.R. 1956 S.C. 415.

Output:
The appellant was tried under section 409, I.P.C., for having committed criminal breach of trust during the period between January 31, 1960 and November 30, 1960 while acting as a cashier.
He was put up for trial in a previous case under section 409, I.P.C., for having committed criminal breach of trust during the period December 8, 1960 to August 17, 1961 and in that case he was acquitted because it was held that he was not in charge of the cash.
On the question, whether on the principle of issue estoppel he should be acquitted, because, if he was not a cashier from December 8, 1960 to August 17, 1961 he could not be held to be a cashier from January 31, 1960 to November 30, 1960.
HELD : The basic principle underlying the rule of issue estoppel is that the same issue of fact and law must have been determined in the previous proceeding, that is, the latter finding must necessarily be in contradiction of the previous determination.
In the present case, however, the accused was never appointed as a cashier, but was a temporary senior accounts clerk who was alleged to be doing the work of a cashier.
A person may be acting as a cashier at one period and may not be acting as a cashier at another.
In such circumstances, when the periods are different, there can be no such contradiction.
Therefore, the rule of issue estoppel does not apply to the facts of the case.
[621 H; 622 A C]