Edited By Nauman Sadiq (PLP)

CHANDRASBKHARA AIYAR J.‑

This appeal is from a reversing decree of the Bombay High Court in a suit for the possession of certain immovable properties which was dismis sed by the Civil Judge, Senior Division, Sholapur. The value of the properties has been found to be over Rs. 10,

000. The original decree was on 20th December 1946. The decree of the High Court allowing the plaintiff's claim was on 8th November 1949. The defendants applied for leave to appeal to the Federal Court on 6th January 1950. The High Court directed the trial Court to find the value of the property which was the subject‑matter of the suit at the time of the suit and on the date of the passing of the decree in appeal. On 22nd January 1951 the lower Court ascertained the value as stated above. The High Court thereafter granted leave to appeal on 1st October 1951, overruling the objections raised by the plaintiff to the grant of such leave. The maintainability of this appeal has been questioned before us by Mr. Dadachanji, learned counsel for the respon dents in a somewhat lengthy argument. His main contention was that Article 133 of the Constitution applies to the case, and as the value is below Rs. 20,000, no appeal can be enter tained. It is the correctness of this argument that we have to consider. On the date of the decree of the High Court, the defen dants had 4 vested right of appeal to the Federal Court, as the properties were of the requisite value, and on 6th January 1950 they sought a certificate of leave to appeal, which was bound to be granted. The Constitution establishing the Supreme Court as the final appellate authority for India came into force on 26th January 1950. Did the vested right become extinguished with the abolition of the Federal Court? If the Court to which an appeal lies is altogether abolished without any forum substituted in its place for the disposal of pending matters or for the lodgment of appeals, the vested right perishes no doubt. We have therefore, to examine whether the Constitution which brought the Supreme Court into being makes any pro vision for an appeal from a reversing decree of the High Court prior to the date of the Constitution respecting properties of the value of Rs. 10,000 and more being entertained and heard by the Supreme Court. Article 135 is in these terms:‑ "Until Parliament by law otherwise provides, the Supreme Court shall also have jurisdiction and powers with respect to any matter to which the provisions of Article 133 or Article 134 do not apply if jurisdiction and powers in relation to that matter were exercisable by the Federal Court imme diately before the commencement of this Constitution under any existing law." Article 133 runs as follows:‑ "(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies‑ (a) that the amount or value of the subject‑matter of the dispute in the Court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees or such other sum as may be specified in that behalf by Parlia ment by law; or (6) that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; or (c) that the case is a fit one for appeal to the Supreme Court; and, where the judgment, decree or final order appealed from affirms the decision of the Court immediately below in any case other than a case referred to in sub -clause (c), if the High Court further certifies that the appeal involves some substantial question of law . . . . . :" It is reasonably clear that Article 133 does not apply to this "matter". The language is prospective, and the judgment, decree or final order from which the appeal is to be taken i that of a High Court in the territory of India‑that is a High D Court established under the Constitution. The territory of India comprises the territory of The State. Article 214 says that there shall be a High Court for each State, and Clause (2) thereof provides that "the High Court exercising jurisdiction in relation to any Province immediately before the commencement of this Constitution shall be deemed to be the High Court for the corresponding State." We can compendiously speak of the High Court prior to the Constitution and the High Court after the Constitution as the Provincial High Court and the State High Court. A High Court in the territory of India means a State High Court, and Article 133 provides for appeals against any judgment decree or final order in a civil proceeding of such High Court. Though Article 133 does not apply, we have still to see whether it is a matter as regards which jurisdiction and powers were exercisable by the Federal Court immediately before the commencement of the Constitution. It is unnecessary to refer in detail to the earlier enactments defining the jurisdiction of the Privy Council and the Government of India Act, 1935 establishing the Federal Court and conferring a limited jurisdiction on the same. It is sufficient to point out that as the law then stood the Federal Court had jurisdiction to entertain and hear appeals from a decree of a High Court which reversed the lower Court's decree as regards properties of the value of more than R s. 10,

000. The aggrieved party had a right to go before it, without any special leave being granted. It was a matter over which jurisdiction was "exercisable" by the Federal Court. The construction that it was "exercisable" only if the matter was actually pending before the Federal Court and that it could not be said to be pending until the appeal is declared admitted under Order XLV of the Civil P. C. is two narrow, and does not give full and proper scope to the meaning of the word "exercisable" in the Article. Pending matters are dealt with under Article 374 (2), and we must give some meaning to the provisions of Article

135. As soon as the decree of the High Court came into exis tence, the jurisdiction of the Federal Court to hear an appeal from that decree became exercisable provided certain condi tions as to security and deposit were complied with, which are not material for our present purpose. Reference may be made here to paragraph 20 of the Adaptation of Laws, Order 1950, as amended in 1951, which provides: "Nothing in this Order shall affect the previous operation of, or anything duly done or suffered under, any existing law, or any right, privilege obligation or liability already acquired, accrued or incurred under any such law . . . . By this Order section 110, Civil P. C. was adapted to the new situation but the requirement as to value was raised from 10,000 to 20,

000. What is provided is that this adaptation will not affect the right of appeal already accrued. If we accede to the argument urged by the respondents, we shall be shutting out altogether a large number of appeals, where the parties had an automatic right to go before the Federal Court before the Constitution and which we must ‑hold was taken away from them for no fault of their own, merely because the Supreme Court came into existence in place of the Federal Court, An interpretation or construction of the provisions of the Constitution which would lead to such a result should be avoided, unless inevitable. The Full Bench decision of the Madras High Court in Veeranna v. G. China Venkanna (A I R 1953 Mad. 878), was a case where the decree of the High Court and the appli cation for leave to appeal were both after the Constitution came into force. Whether in all matter where there was a right of appeal under section 110, Civil P. C. it continues in respect of all suits filed prior to the Constitution is a question that does not arise for decision now. On the merits, the appeal is unassailable. The family whose genealogical tree is given in the opening portion of the judgment of the trial Judge owned what may be compendiously described as Sangam properties and Peta Velapur Mehal properties and all of them were of the nature of watan. The Sangam lands were held by the eldest branch represented by Yeswant Rao (son of Panduranga Rao) by right of lineal primogeniture. When Yeshwant Rao and his widow Tarabai died in November 1924, these properties went to the plaintiff Shankar Rao's branch as the next senior in line. The Peta Velapur Mahal properties were held in three shares by Narsinga Rao, Vithal Rao and Krishna Rao, the 4th brother Shyama Rao having no right as he was insane. Defendants 1, 2 and 3 represent Krishna Rao's branch. After Yeshwant Rao's death, Lakchman Rao, the grand father of defendants 1 and 2, filed a suit No. 1064 of 1925 for a declaration that he was the nearest heir to the Sangam pro perties, the Peta Velapur Mahal properties and the cash income appertaining to the inamdar's right in Sangam. He got a declaratory decree that he was the nearest heir of the deceased Yeshwant Rao, and had a right in such capa city to take possession of all the properties, excluding the inam income and the Sangam lands specified in Schedule B of the decree and small item of property situated in the same village and specified in Schedule G. As regards the excluded items, Shankar Rao, the first defendant, (plaintiff in the present suit) was held to be the heir. On appeal to the High Court, the decree of the Subordi nate Judge was confirmed, except as regards the cash allowance of three villages Nevare, Tambure and Limbagaon, which was also declared to belong to Shankar Rao. As the decree was only a declaratory decree, a fresh suit had to be filed by Narayana Rao, son of Lakshman Rao, to recover possession of the Peta Velapur Mahal properties at Mahalung, Lavang and Wafegaon. This was Civil Suit No. 2148 of 1936. Recovery was also sought of some cash and the value of some ornaments and clothes, etc. The claim was resisted by Shankar Rao, and his main plea was that in lieu of the properties claimed, a large number of lands of Sangam had originally been given to the plaintiff's branch, and that unless those properties were given back, the plaintiff could not claim to recover the Velapur Mahal proper ties. The suit ended in a compromise decree. Shankar Rao was to deliver actual possession of the lands to the plaintiff as owner together with costs and mesne profits and the plaintiff was to abandon the rest of the claim. The decree states. "The defendant has given up all the contentions in his written statement". After possession was taken of the Velapur Mahal pro perties under the decree the plaintiff, Shankar Rao, brought this suit to recover from defendants 1 and 2 the Sangam lands to which he referred in his earlier written statement alleging that they were given to their grandfather in lieu of mainte nance. The defendants have made the answer that the items of Sangam lands claimed by the plaintiff were given to their ancestor Krishna Rao absolutely under the deed of 1867, and that since then they had been in the enjoyment as owners thereof. The Civil Judge dismissed the plaintiff's suit finding that the case of the plaintiff to the effect that the land were given to Krishna Rao for maintenance under the deed of 1867 was unfounded. But on appeal by Shankar Rao (the plaintiff), the High Court reversed this decree construing the deed of 186'/ as a deed under which absolute ownership was not transferred to Krishna Rao and that the specified items of Sangam lands were given to him provisionally and conditionally till Krishna Rao obtained possession of the Peta Velapur Mahal lands which were then under a mortgage. We have examined the deed closely and do not find any warrant for the view taken by the learned Judge on appeal. The deed is Exh. No. 35, and it is printed at page 63 of the Paper Book. The correctness of the translation is admitted. It was executed by Narsinga Rao of the first branch in favour of Krishna Rao of the last branch, predecessor‑in‑title of defendants 1 to

3. After reciting that Krishna Rao was entitled to a one third share in the income appertaining to the Deshmukhi rent of the family at Peta Velapur Mahal, it pro ceeds to say. . . . . . In lieu of the land of that Mahal and in respect of the cash allowance of the Haqdari rights we have given to you for a 1/3rd share of land of this Mahal the following lands from the village of Sangam which is continued with us by Vedilki right (the right of primogeniture)." The deed proceeds to set out the item by areas, assessment, and boundaries, and then goes on: ‑ In all 6 numbers have been given by us to you in lieu of your entire income from the said Mahal. Now, five and half Pavs out of the said land are in your 'Vahiwat' at pre sent and the remaining land was to have been given over to your Vahiwat, but we having formerly mortgaged the said village to Ramchandra Pandurang Deshpande, 5 `Pavs' of land is not in your Vahiwat this day. Hence on the expiry of 6 years, the period of the mortgage, you may carry on the entire Vehiwat of the land passed to your favour in writing as aforesaid without any hindrance. We have no claim of inheritance left on the aforesaid land." The deed concludes with a provision made for the residence of the donee in an open space in the same village. It further states:‑ " . . . . .there are four shops and a wada at the Kesba of Velapur, and a one‑third share thereof has been allotted to your share over which we have no claim of inheritance left." It is obvious from this document that the one‑third share of Krishna Rao's branch in the Peta Velapur Mahal properties was retained by Narsingha Rao and that in lieu thereof Krishna Rao was given six items of the Sangam properties, the whole of which could not then and there be given over into his pos session and management as there was a usufructuary mortgage over a portion of the lands which was to expire after the lapse of six years from that date. The land referred to as mortgaged are the Sangam lands and not the Peta Velapur Mahal lands as wrongly assumed by the High Court. There is absolutely nothing said about the properties being given for maintenance to Krishna Rao. On the other hand, in two places we find that any right to inheri tance was given up. In fact, this case of the plaintiff was given up before the trial Judge. It is true that there was an exchange of properties, but there is nothing to warrant the view of the learned Judges that it was provisional or conditional, and that the Sangum lands were to be returned when the Velapur Mahal properties went into the possession and management of Krishna Rao's branch. To say that such an arrangement was implied is to ignore the plain terms of the deed. The properties now in dispute are the items covered by the deed. They did not form the subject‑matter of the two previous litigation. Since 1867, the date of Exh. No. 35 they have always been in the possession of the defendants' branch as owners. It must also be remembered that the earlier suits of 1925 and 1936 proceeded on the basis that the defendants' branch was the heir to the properties left by the deceased, Yeshwant Rao. There is no other question which arises for discussion or decision. It follows that the trial Judge was right in holding that the plaintiff's claim to recover possession of the suit properties covered by the deed of 1867 was entirely baseless. The decree of the High Court is reversed and that of the trial Judge is restored with costs throughout payable by the plaintiff to the defendants. M.I.B. Appeal allowed. P L D 1957 Supreme Court (Ind.) 158 Present: S. R. Das, Acting C. J., Bose, Jagannadhadas, Imam and Chandrasekhara Aiyar, JJ SADHU RAM‑Petitioner Versus THE CUSTODIAN‑GENERAL OF EVACUEE PROPERTY‑Respondent Petition No. 306 of 1954, decided on 28th October 1955.

Act, 1947, S. 5 (Pakistan Administration of Evacuee Property Ordinance (XVIII of 1956), S. 16‑Provision relating to confirmation of transfers of property by evacuees‑Whether deprivation of property‑Constitution of India, Arts. 31 and 19 (5): (Constitu tion of Pakistan, Arts. 15 and 11)‑Validity of provision requiring confirmation by Custodian. The provision requiring confirmation is not a legislative pro vision depriving the owner of his property. As the transferee takes the property subject to the requirement of confirmation, the case would be one falling under Article 19 and net Article

31. There can be no doubt that having regard to the purpose and policy underlying the law relating to Evacuee Property and the abnormal conditions which arose from and after 15th August 1947, the requirement of confirmation with reference to tran sactions affecting evacuee property cannot but be considered a reasonable restriction. If this requirement was in essence not a deprivation but a restriction in respect of future transac tion there is no reason for treating it as deprivation by virtue of its having been given retrospective effect, such retrospective effect being within the competence of the appropriate legislature. Kundan Lal Mehta and B. R. L. Iyenger Advocates for Petitioner. C. K. Daphatary, Solicitor‑General of India (Porus A. Mehta and R. H. Dhebar Advocates with him) for Respondent. JUDGMENT JAGANNADHADAS, J.‑

This is an application under Article 32 of the Constitution which arises under the following circum stances. The petitioner, Sadhu Ram purchased from one Imam‑ud‑Din, a Muslim evacuee, 43 bighas 14 biswas of agricultural land comprised in Khasra Nos. 2135 to 2139, 2158, 21`_9, 2171, 2204 and 2206 with 'Shamlat' rights in village Kaithal, District Karnal, Punjab. The sale deed was executed on 6th September 1947, and registered on 9th September 1947, before Imam‑ud‑Din left for Pakistan. The consideration therefore was Rs. 3,000 and as much as Rs. 2,700 thereof appears to have been paid by the petitioner to the vendor before the Sub‑Registrar. Possession also was trans ferred on the execution of the sale‑deed. Mutation was made by the revenue authorities on 23rd January 1948. East Punjab Evacuees' (Administration of Property) Act 1947 (East Punjab Act XIV of 1947) came into force on 12th December 1947 It was amended by East Punjab Evacuees' (Administration of Property) (Amendment) Ordinance, 1948 (East Punjab Ordi nance II of 1948) which came into force on 16th January 1948. This gave place to East Punjab Evacuees' (Administration of Property) (Amendment) Act, 1948 (East Punjab Act XXVI of 1948) which came into force on 11th April 1948. By these amendments a new section, section 5‑A, was inserted in the East Punjab Act XIV of 1947. It will be seen that these amendments were subsequent to the date of the execution and registration of the sale‑deed and the transfer of possession thereof. Section 5‑A, so far as it is relevant for our present purpose is in the following terms:‑ "5A. (1) No sale, mortgage, pledge, lease, exchange or other transfer of any interest or right in or over any property made by an evacuee or by any person in anticipation of his becoming an evacuee, or by the agent assign or attorney of the evacuee or such person on or after the fifteenth day of August 1947, shall be, effective so as to confer any rights or remedies on the parties to such transfer or on any person claiming under them unless it is confirmed by the Custodian. (2) An application for confirming such transfer may be made by any person claiming thereunder or by any person lawfully authorised by him." This section purports to be restrospective. Hence an applica tion for confirmation was made by the petitioner on 23rd March 1948. The Assistant Custodian, Karnal on being satisfied about the genuineness of the transaction, recom mended confirmation. But the Additional Custodian, Jullundur, by his order dated 11th February 1953, rejected the application for confirmation acting on the Custodian‑General's circular dated 9th March 1950, under which a policy of not confirming transactions relating to agricultural property was enunciated. This was affirmed by the Assistant Custodian General on an application to him for revision. Learned counsel for the petitioner relies on the fact that his transaction which on enquiry, was held to be genuine, was entered into before the East Punjab Act XIV of 1947 was enacted and before the amendment thereof by insertion of section 5‑A came into operation. He contends that the retrospective operation of section 5‑A in such circumstances amounts to deprivation of his property, without any compen sation and is, therefore, hit by Article 31 of the Constitution. Whatever may have been the position if this matter had to be dealt with much earlier, it seems doubtful whether any such contention can be raised by the petitioner before us, on this date, in view of the recent Constitution (Fourth Amend ment) Act, 1955, which has come into force on 27th April 1955. It is unnecessary, however, to base our decision on this ground. It appears to us clear that section 5‑A cannot be read as a legislative provision depriving the owner of his property. There can be no doubt that so far as transactions subsequent to the date of amendment are concerned, it is nothing more than a restriction on the transfer of property by the owner thereof. Any transferee in such a situation takes the property subject to the requirement of confirmation. The case would, then, be one which falls under Article 19 of the Constitution and not under Article

31. There can be no doubt that having regard to the purpose and policy underlying the law relating to Evacuee Property and the abnormal conditions which arose from and after 15th A August 1947, the requirement of confirmation with reference to transactions affecting Evacuee Property cannot but be considered a reasonable restriction. If this requirement was in essence not a deprivation but a restriction in respect of future transactions, there is no reason for treating it as depri vation by virtue of its having been given retrospective effect such retrospectivity being within the competence of the appro priate Legislative. The retrospectivity commencing from 15th August 1947, is also not only reasonable but called for in the circumstances, which occasioned the Evacuee Property laws. In this case the petitioner is deprived of his bargain and incurs consequential loss, not by virtue of any unconstitutional law but by reason of the quasi‑judicial order of the Custodian declining to con firm the transaction. The contention of the learned counsel for the petitioner that any fundamental right of his has been violated must, therefore, be rejected. Learned counsel next urges that the action or the Custo dian in basing his decision on some circular of the Custodian. "General is illegal and that it is not relevant material under section 5‑A. It is enough to say that even if this contention be correct, this does not raise any question of violation of fundamental rights. If this is the sole ground, this application is misconceived. This petition accordingly fails and is dismissed but in the circumstances without costs. M. I. B. Petition dismissed. P L D 1957 Supreme Court (Ind.) 160 Present: S. R. Das, Acting C. J., Bose, Jaggannadhadas, Imam and Chandrasekhara Aiyar, JJ MATAJOG DOBEY AND OTHERS‑Appellants Versus H. C. BHARI AND OTHERS‑Respondents Criminal Appeals No. 67 and (8 of 1954, decided on 31st October 1955. (a) Constitution of India,

Art. 14 (Constitution of Pakistan, Art. 5)

Criminal Procedure Code (V of 1898), S. 197‑Whether S. 197, ultra vires being a discriminatory provision‑Objection as to unconstitutionality of S. 197‑Whether can be raised by complainant. Article 14 does not render section 197, Criminal P. C. ultra vires as the discrimination is based upon a rational classification. Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard. There is no question of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by a public servant in the discharge of his duties. No one can take such proceedings without such sanction. If the Government gives sanction against one public servant but declines to do so against another, then the Government servant against whom sanction is given may possibly complain of discrimination. But the complainant cannot be heard to say so, for there is no discrimination as against any complainant. (b) Constitution of India

Art. 14 (Constitution of Pakistan, Art. 5)‑Discretionary power when discriminatory. A discretionary power is not necessary a discriminatory power and abuse of power is not to be easily assumed where the discretion is vested in the Government and not in a minor official. (c) Criminal Procedure Code (V of 1898)

S. 197‑Sanction when necessary and at what stage need of sanction is to be considered. The offence alleged to have been committed must have something to do or must be related in some manner with discharge of official duty. No question of sanction can arise under section 197 unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. The test laid down in 1944 F C R 262 that it must be established that the act complained of was an official act appears to be narrowing down the scope of protection approved by section 197, Criminal P. C. It is not always necessary that the need for sanction under section 197 is to be considered as soon as the complaint is lodged and on the allegations therein contained. The question may arise at any stage of the proceedings. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case. Hori Ram Singh v. Emperor A I R 1939 F C 43; H. B. Gill v. The King A I R 1948 P C 128, Shreekantlah Ramayya Muni palli v. State of Bombay A I R 1955 S C 287 and Amrik Singh v. State of Pepsu A I R 1955 S C 309 considered. Hori Ram Singh v. Emperor A I R D3: c: 43 and Sarjoo Prasad v. Emperor A I R 1946 F C 25 ref. H. H. B. Gill v. The King A I R 1948 P C 128, Hori Ram Singh v. Emperor A I R 1939 F C 43, H. T. Huntley v. Emperor A I R 1944 F C 66, Albert West Meads v. The King P L D 191; P C 182, Shreekantlah Ramayya Mumpalla v. State of Bombay v A 1 R 1955 S C 287, Amrik Singh v. State of Pepsu A I R 1955 S C 309, Sarjoo Prasad v. Emperor A I R 1946 f; C 25, Jones v. Owen (1823) 1 L J O S K B 139 and Hatton v. Treeby (1897) 2 Q B 452 ref. S. C. Issacs, Senior Advocate (C. P. Lal, Advocate with him) for Appellants (in both Appeals). C. K. Dephtary, Solicitor‑General of India (Porus .A. Mehta and P. G. Gokhale Advocates with him) for Respondents (in both appeals). JUDGMENT CHANDRASEKHARA AIYAR, J.‑

These appeals collie before us on special leave to appeal granted under Article 136 of the Constitution against two orders of the Calcutta High Court dismissing Criminal Revision Petition Nos. 559/Sl and 312/52 preferred by the appellants respectively. In Criminal Revision Petition No. 559/51, the High Court (Harries, C. J. and Bannerjee, J.) confirmed an order made by a Presidency Magistrate discharging the accused on the ground of want of sanction under section 197, Criminal P. C. In Criminal Revision Petition No. 312/52, Lahiri and Guha, JJ., set aside an order made by another Presidency Magistrate that no sanction was required and they quashed the proceedings against the accused. The incidents which gave rise to the two complaints are closely inter‑related and can ez set out briefly. In connection with certain proceedings pending before the Income‑tax Investigation Commission it was found necessary to search two premises‑17, Kalakar Street and 36, Armenian Street to inspect, take copies and secure possession of certain books, papers and documents believed to be in them. A warrant was issued by the Commission for this purpose in favour of persons, namely, H. C. Bhari, A. D. De, A. K. Bose and P. Mukherjee, to carry out the search. The authorised officials went to the Kalakar Street premises, third Boor on the morning of December 1950. Matajog Debey (Appellant in Criminal Appeal No. 67), the darwan of Kashiram Aggarwala, says that when he found them forcibly breaking open the entrance door of the flat the challeng ed them and requested them to desist. They paid no heed to him, broke open the door, went inside and interfered with some boxes and drawers of tables. They tied him with a rope and assaulted him causing injuries. On these facts, he filed a complaint on 27th Decem ber 1950 against H. C. Bhari and three others (names unknown) under sections 323, 341, 342 and 109, Penal Code. The four officials and some policemen raided the Armenian Street premises on the evening of 26th December 1950. Nandram Agarwala (father of Kashiram Agarwala) came to the place and found that they had forcibly opened the lock of the door of the room in which there were several books and papers, which they were collecting and packing into bundles for removal. He protested, pointed out that their actions were illegal and oppressive, and he wanted a proper search list to be prepared and proper receipts to be given to him for the books and documents sought to be seized and removed. Thereupon, two policemen held him down and he was assaulted mercilessly, kicked, dragged downstairs, put in a police van, and taken to the Burra Bazar thana, where he was assaulted again before being sent to the hospital. He was brought back and kept in the lock up till midnight when he was released on bail. Setting out these facts, he lodged a complaint against the four officials, other subordinates and police officers whose names he did not then know but could supply later. The offences mentioned in the complaint are sections 323 342 and 504, Penal Code. Later, the names of two police officers were given‑Bibhuti Chakravarti and Nageswar Tiwari. The two complaints were sent over for judicial inquiry to two different Magistrates. On 21st February 1951, the Magis trate held on Agarwala's complaint that a prima facie case had been made out under section 323 against all the four accused and under section 342 against the two policemen. On this report, summonses were directed to issue under section 323 against all the accused. On 1st May 1951, two prosecution witnesses were examined‑in‑chief and the case stood adjourned to 22nd May 1951. It was on this latter date that the 1st accused Bhari filed a petition, taking the objection of want of sanction under section 197, Criminal P. C. The objection was upheld and all the accused discharged on 31st May 1951, Nandram Agarwala went up to the High Court in revision, but the order of the Presidency Magistrate was affirmed. In Matajog Dobey's complaint, after the termination of the inquiry, process was issued only against Bhari under section 323 and 342, Penal Code, for 22nd December 1951. After some adjournments, accused filed on 26th February 1952 a petition as in the other case raising the same objection. The Magistrate on whose Isle the case was pending overruled the objection and directed that the case should proceed. Accused Bhari took the matter on revision to the High Court and succeeded. In Nandram Agarwal's case (Criminal Revision Petition No. 559/51) Chief Justice Harries and Banerjee, J., held that the test formulated by the Privy Council in H. H. B. Gill v. The King (AIR 1948 P C 128), applied and on that a fair reading of the complaint, bereft exaggerations and falsehoods, the officers could reasonably claim that what they did was done by them in the exercise of their official duty. In Matajog Dobey's case (Criminal Revision Petition No. 312/52), the learned Judges (Lahiri and Guha, JJ.) came to the same conclusion in these words: "From the nature of the allegations therefore against the petitioner, it is abundantly clear that there was something in the acts alleged against him which attached them to the official character of the petitioner, that is, which attached them to his official character in holding the search". Mr. Issacs, learned counsel for the appellants in the two appeals, challenged the soundness of these conclusions and advanced three categorical contentions on their behalf. Firsly, an act of criminal assault or wrongful confinement, can never be regarded as an act done while acting or purporting to act in the discharge of official duty; secondly, that in a case where the duty is clearly defined by statute and warrant of authority, such acts could never come within the scope of employment; and thirdly, that in any case it was the duty of the Court to allow the prosecution to proceed and not stifle it in limine. He also urged that as the entry on the 23rd December was into a wrong place, P‑17, Kalakar Street, and not 17, Kalakar Street which was the authorised premises, the search was illegal from the commencement. He raised the constitutional point that section 5 (1), Taxation on income (Investigation Com mission) Act (XXX of 1947) and section 197, Criminal P. C., were ultra vires as, they were discriminatory in their nature, and offended Article 14 of the Constitution. In the course of his arguments, he referred to section 6, subsections (7) and (9), Taxation on Income (Investigation Commission) Act (XXX of 1947) and rule 10 and the search warrant that was issued under them. His main argument was that there was no power conferred by statute of under common law on the authorised officials to assault or use force in the execution of their duty and any such acts must therefore be deemed to be entirely outside the scope of their employment. He drew our attention to the sections of the Criminal P. C. relating to searches and quoted two old English cases to rein force this position. The search warrant is in these terms:‑ "Warrant of Authorisation under sections 6 (7) and 6 (9) and rule

8. Taxation on Income (Investigation Commission) Act, 1947. Whereas information has been laid before the Commission and on the consideration thereof the Commission has been led to believe that certain books, documents and papers, which are or may be relevant to proceedings under the above Act in the case compendiously known as the S. Jhabbarmul group (R. C. No. 313) and connected cases have been kept and are to be found in (i) the third floor, 17, Kalakar Street, Calcutta (ii) 47, Khengraputty Street, Calcutta‑7, and (iii) the second floor and adjoining rooms. 36, Armenian Street, Calcutta, compound, offices and out‑houses or other places in that locality. This is to authorise and require you. Sri H. C. Bhari, Authorised Official, Income‑tax Investigation Commission. (a) to enter and search with such assistance of police officers as may be required, the said premises or any other place or places where you may have reason to believe that such books, documents or papers may be found: (b) to place identification marks on such books, docu ments and papers as may be found and as you may consider relevant to the proceedings aforesaid and to make a list thereof together with particulars of the identification marks; (c) to make copies or extracts from such books, docu ments and papers; (d) to seize such books, documents and papers and take possession thereof; and (e) to exercise all other powers and duties under the said sections and the rules relating thereto". Straightway, it may be conceded that the warrant set out above specifies precisely the scope of the duties entrusted to the authorised officials. Whether they took any policemen with them even at the commencement or whether they were only sent for when resistance was offered is not clear. This, however, does not matter as the warrant authorises police assistance at the search. The version of the complainants as to what happened at the search is set out in the two complaints. The story of the accused is found in the petitions filed by Bhari urging the objection under section 197, Criminal P. C. Details about the occurrences were also elicited at the two judicial enquiries. There are two medical certificates specifying the injuries found on Nandram Agarwala and Matajog Dobey. The minor contentions may be disposed of at the outset. Even if there was anything sound and substantial in the con stitutional point about the vires of section 5 (1) of the Act, we declined to go into it as it was not raised before the High Court or in the grounds of the petition for special leave to appeal. Article 14 does not render section 197, Criminal P. C. ultra vires as the discrimination is based upon a rational classi fication. Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard. It was argued that section 197, Criminal P. C., vested an absolutely arbitrary power in the government to grant or withhold sanction at their sweet will and pleasure, and the Legislature did not lay down or even indicate any guilding principles to control the exercise of the discretion. There is no question of any discrimination between one person and another in the matter of taking proceedings against Marl a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties. No one can take such proceedings without such sanction. If the government gives sanction against one public servant but declines to do so against another, then the government servant against whom sanction is given may possibly complain of dis crimination. But the petitioners who are complainants cannot be heard to say so for there is no discrimination as against any complainant. It has to be borne in mind that a discretionary power is not necessarily a discriminatory power and that abuse of power is not be easily assumed where the discretion is vested in the government and not in a minor official. Further, we are not now concerned with any such question. We have merely to see whether the Court could take cognisance of the case without previous sanction and for this purpose the Court has to find out if the act complained against was committed by the accused while acting or purporting to act in the discharge of official duty. Once this is settled, the case proceeds or is thrown out. Whether sanction is to be accorded or not is a matter for the government to consider. The absolute power to accord or withhold sanction conferred on the government is irrelevant and foreign to the duty cast on the Court, which is the ascer tainment of the true nature of the act. The objection based on entry into the wrong premises is of no substance; it is quite probable that the warrant specified 17 instead of P. 17 by a bona fide mistake or error; or it may be that the party made an honest mistake. As a matter of fact, the account books, etc. were found in P. 17, the premises raided. Slightly differing test have been laid down in the decided cases to ascertain the scope and the meaning of the relevant words occurring in section 197 of the Code; "any offence alleged to have been committed by him while acting or pur porting to act in the discharge of his official duty". But the difference is only in language and not in substance. The offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty. No question of sanction can arise under section 197, unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What we must find out is whether the act and the official duty are so inter‑related that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of the needs and requirements of the situation. In Hori Ram Singh v. Emperor (AIR1939FC43), Sulaiman J. observes: "The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor is it necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction". The interpretation that found favour with Varadachariar, J. in the same case is stated by him in these terms at page 56: "There must be something in the nature of the act complained of that attaches it to the official character of the person doing it". In affirming this view, the Judicial Committee of the Privy Council observe in Gill's case. "A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty . . The test may well be whether the public servant, if challenged, can reasonably claim that what he does, he does in virtue of his office". A I R 1939 F C 43 is referred to with approval in the later case of H. T. Huntley v. Emperor (AIR1944FC66), but the test laid down that it must be established that the act complained of was an `official' act appears to us unduly to narrow down the scope of the protection afforded by section 197, Criminal P.C as defined and understood in the earlier case. The decision in Albert West Meads v. The King (A I R 1948 P C 156: P L D 1948 P C 182), does not carry us any further; it adopts the reasoning in Gill's case. There are two cases of this Court to which reference may be made here. In Shreekantiah Ramayya Munipalli v. State of Bombay (A I R 1955 S C 287), Bose, J. observes as follows:‑ "Now it is obvious that if section 197 of the Code of Cri minal Procedure is construed too narrowly, it can never be applied, for of course, it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning". The question of previous sanction also arose in Amrik Singh v. State of Pepsu (A I R 1955 S C 309). A fairly lengthy discussion of the authorities is followed up with this summary: "If the acts complained of are so integrally connected with the duties attaching to the office as to be inseparable from them, then sanction under section 197 (1) would be neces sary; but if there was no necessary connection between them and the performance of those duties, the official status furnishing only the occasion or opportunity for the acts, Sri then no sanction would be required". The result of the foregoing discussion is this: There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the perfor mance of his duty. Is the need for sanction to be considered as soon as the complaint is lodged and on the allegations therein contained? At first sight, it seems as though there is some support for this view in Hori Ram's case, and also in Sarjoo Prasad v. Emperor (AIR1946FC25). Sulaiman, J. says that as the prohibition is against the institution itself, its applicability must be judged in the first instance at the earliest stage of institution. Varadacha riar, J. also states that the question must be determined with reference to the nature of the allegations made against the public servant in the criminal proceedings. But a careful perusal of the later parts of their judgments shows that they did not intend to lay down any such proposi tion. Sulaiman, J. refers (at page 52) to the prosecution case as disclosed by the complaint or the `police report' and he winds up the discussion in these words:‑ "Of course, if the case as put forward fails or the defence establishes that the act purported to be done is in execution of duty, the proceedings will have to be dropped and the complaint dismissed on that ground". The other learned Judge also states at Page 55, "At this stage we have only to see whether the case alleged against the appellant or `sought to be proved' against him relates to acts done or purporting to be done by him in the execution of his duty". It must be so. The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in~ the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the neces sity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case. We are not prepared to concede in favour of the appel lants the correctness of the extreme proposition advanced by Mr. Issacs on their behalf that when obstruction is laid or resistance offered against an authorised and, therefore, lawful search, the officials conducting the search have no right to remove or cause to be removed the obstruction or resistance by the employment of reasonable force, and their remedy is only to resort to the police or the magistracy with a com plaint. Such a view would frustrate the due discharge of the official duty and defeat the very object of the search, as the books, etc. might be secreted or destroyed in the interval; and it would encourage obstruction or resistance even to lawful acts. It may be that more than reasonable force is used to clear the obstruction or remove the resistance, but that would be a fit subject‑matter for inquiry during the proceedings; it would not make the act of removal improper or unlawful. It is a matter for doubt if Chapters V and VII, Criminal P. C. can be read as an exhaustive enumeration of all the powers of a search party. Anyhow, section 6, subsection (9), Investigation Commission Act, makes the provisions relating to searches applicable only "so far as they can, be made applicable". The two English cases relied on are scarcely of any help. In Jones v. Owen ((1823) 1 LJOS KB 139) a rather startling view was taken that a power to apprehend a person for a statutory offence did not include a power to move that person gently aside. Hatton v. Treeby, ((1897) 2 QB 452) was a case where the Act of a Parliament which created a new offence did not in itself provide for a power of detention of the offender. Where a power is conferred or a duty imposed by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power of the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution. If in the exercise of the power or the performance of the official duty, improper or unlawful obstruction or resistance is encountered, there must be the right to use reasonable means to remove the obstruction or overcome the resistance. This accords with common sense and does not seem contrary to any principle of law. The true position is neatly stated thus in Brooms's Legal Maxims, 10th Ed. at page 312: "It is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command." Let us, however, assume that Mr. Isaacs is right in his contention. Still, it can be urged that the accused could claim that what they did was in the discharge of their official duty. The belief that they had a right to get rid of the obstruc tion then and there by binding down the complainants or removing them from the place might be mistaken, but, surely, it could not be said that their act was necessarily mala fide and so entirely divorced from or unconnected with the discharge of their duty that it was an independent act maliciously done or perpetrated. They could reasonably claim that what they did was in virtue of their official duty, whether the claim is found ultimately to be well founded or not. Reading the complaints alone in these two cases, even without the details of facts as narrated by the witnesses at the judicial inquiries, it is fairly clear that the assault and use of criminal force, etc., alleged against the accused are definitely related to the performance of their official duties. But taken along with them, it seems to us to be an obvious case for sanction. The injuries‑a couple of abrasions and a swelling on Nandram Agarwala and two ecchymosis on Matajog‑indicate nothing more than a scuffle which is likely to have ensued when there were angry protests against the search and a pushing aside of the protestors so that the search may go on unimpeded. Mr. Isaacs finally pointed out that the fourth accused Nageswar Tiwari was a constable and the case should have been allowed to proceed against him at least. This question arises only in Nandram Agarwala's case. The Magistrate who dismissed the complaint took the view that there was no use in proceeding against him alone, as the main attack way directed against the Income‑Tax Officials. No such grievance was urged before the High Court and it is not raised in the grounds for special leave. We hold that the orders of the High Court are correct and dismiss these two appeals. M. I. B. Appeals dismissed. P L D 1957 Supreme Court (Ind.) 170 Present: Bhagwati, Imam and Govinda Menon, JJ G. A. MONTERIO‑Appellant Versus THE STATE OF AJMER‑Respondent Criminal Appeal No. 146 of 1954, decided on 21st September 1956, from Criminal Appeal No. 15 of 1954, dated 27th November of 1954, Ajmer.

S. 21 (9)‑Word "Officer"‑Connotation of‑Person whether an officer‑Test to determine Prevention of Corruption Act (II of 1947), S. 2. The test to determine whether a person is an officer within the meaning of section 21 (9), Penal Code, is: (1) Whether he is in the service or pay of the Govern ment, and (2) Whether he is entrusted with performance of any public duty. If both these requirements are satisfied it matters not the least what is the nature of his office, whether the duties he is performing are of an exalted character or very humble indeed. If therefore, on the facts of a particular case the Court comes to the conclusion that a person is not only in the service or pay of the Government but is also performing a public duty, he has 'delegated to him the functions of the Government or is in any event performing duties immediately auxiliary to those of some one who is an officer of the Government and is therefore an `officer' of the Government within the meaning of section 21 (9) of Penal Code. Reg v. Ramajirao Jivbaji 12 Bom. H C R 1 distinguished. Nazamuddin v. Queen‑Empress I L R 28 Cal. 344 rel. Ahad Shah v. Emperor A I R 1918 Lah. 152 and Queen v. Nachimuttu I L R 7 Mad. 18 ref. B. P. Maheshwari, Advocate for Appellant. C. K. Daphtary, Solicitor‑General for India (Porus A. hiehta, H. R. Khanna and R. H. Dhebar, Advocates with him) for Respondent. JUDGMENT BHAGWATI, J.‑

This Appeal with a certificate of fitness under Art. 134 (1) (c) of the Constitution against the decision of the Judicial Commissioner at Ajmer raises an important question as to the connotation of the word "officer" contained in section 21 (9), Penal Code. The appellant was a Class III servant employed as a metal examiner, also called Chaser, in the Railway Carriage Workshops at Ajmer. He was charged under section 161, Penal Code with having accepted from one Nanak Singh currency notes of the value of Rs. 150 as illegal gratification as a motive for securing a job for one Kallu. He was also charged under section 5 (1) (d) of Act II of 1947 with abusing his position as a public servant and obtaining for himself by corrupt or illegal means pecuniary advantage to the shape of Rs. 150 from the said Nanak Singh. He was further charged with having committed an offence under section 420, Penal Code for having induced the said Nanak Singh to deliver to him currency notes of the value of Rs. 150 by dishonest representation that he could secure a job for the said Kallu. The learned Special Judge, State of Ajmer, who tried him in the first instance for the said offences convicted him of the offence under section 161, Penal Code as also the offence under section 5 (1) (d) of Act II of 1947 and sentenced him to suffer rigorous imprisonment for six months and one year respectively in regard to the same, both the sentences to run concurrently. In so far, however, as it was not proved that the appellant did not believe when he accepted the money that he could secure or would try to secure a job for Kallu, it was held that no case under section 420, Penal Code was made out and he was acquitted of that charge. The appeal taken to the Judicial Commissioner, State of Ajmer, by the appellant failed and on 10th December 1954, the learned Judicial Commissioner granted to the appellant a certificate of fitness for appeal on two main grounds, viz., a (1) whether the appellant was an "officer" within the meaning of clause (9) of section 21, Penal Code, and (2) whether the provisions of section 137, Railways Act excluded all railway servants from the definition of public servants except for purposes of Chapter 9, Penal Code. Concurrent findings of fact were reached by both the Courts below on the question as to whether the appellant accepted Rs. 150 from Nanak Singh as and by way of illegal gratification and these findings could not be and were not challenged before us by the learned counsel for the appellant. The only questions which were canvassed before us were the two legal points which formed the basis of the certificate of fitness for appeal granted by the learned Judicial Commis sioner, State of Ajmer, to the appellant. The second question has now become academical in the facts of the present case by virtue of a decision of this Court in Ram Krishan v. State of Delhi (A I R 1956 S C 476), which lays down that before the amendment of section 137, Railways Act by Act XVII of 1955 railway servants were treated as public servants only for the purposes of Chapter 9, Penal Code, but in any event they were public servants under the Prevention of Corruption Act (Act II of 1947). In so far as the appellant has, in our opinion, been rightly convicted of the offence under section 5 (1) (d) of Act II of 1947 and awarded the sentence of rigorous imprisonment for one year, the question whether he was rightly convicted of the offence under section 161, Penal Code for which he was awarded the lesser sentence of six months' rigorous imprison ment has become merely academical and the only question which remains to be considered by us here is whether he was an "officer" within the meaning of section 21 (9), Penal Code. The provisions of law in regard to the first question may be conveniently set out at this stage:‑ Section 2, Prevention of Corruption Act II of 1947 provides:‑ "for the purposes of this Act public servant means a public servant as defined in section 21, Penal Code." Section 21, Penal Code provides so far as is relevant for the purposes of the present appeal:‑ "The words `public servant' denote a person falling under any of the descriptions hereinafter, following, namely, Ninth . . . . . . and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty." There is no doubt that the appellant was in the service or pay of the Government and was performing the duty of a metal examiner known as Chaser in the Railway Carriage Workshops at Ajmer and was thus performing a public duty. It was, however, contended that the appellant was not an officer within the meaning of that term as used in section 21 (9), Penal Code. An officer, it was contended, on the authority of Req v. Ramajirao Jivbaji (12 Bom. H C R 1), meant one to whom was delegated by the supreme authority some portion of its regulating and coercive powers and who was appointed to represent the State in its relations to individual subjects. According to the dictum of West, J., the word "officer" meant some person employed to exercise to some extent and in certain circumstances a delegated function of Government. He was either himself armed with some authority or representa tive character or his duties were immediately auxiliary to those of some one who was so armed. It was, therefore, contended that the appellant being a metal examiner known as Chaser in the Railway Carriage Workshops had not delegated to him by the supreme authority some portion of its regulating and coercive powers nor was he appointed to represent the State in its relations to individual subjects. He was neither armed with some authority or representative character nor were his duties immediately auxiliary to those of some one who was so armed. He was not employed to exercise to some extent and in certain circumstances the delegated function of Government and, therefore, was not an "officer" within the meaning of that term as used in section 21 (9), Penal Code. If he was thus not an officer of the Govern ment, he could not be a public servant within the meaning of section 21, Penal Code nor could he be a public servant for the purposes of Act II of 1947 and could not be convicted of the offence under section 5 (i) (d) of Act II of 1947. It has to be noted, however, that the case before the learned Judges of the High Court of Bombay in 12 Bom. H C R 1 concerned an Izaphatdar, that is a lessee, of a village who had undertaken to keep an account of its forest revenue and pay a certain proportion to the Government, keeping the remainder for himself and the question that arose for the consideration of the Court was whether such a person was an officer within the meaning of section 21 (9), Penal Code. It was in this context that the aforesaid observations were made by West, J., and the Court came to the conclusion that Deshmukhs and Deshpandes would be sufficiently within the meaning of the clause they being appointed to perform for the State a portion of its functions or to aid those who were its active representatives but not so an Izaphatdar or the lessee such as the accused. He was not an officer but a mere contractor bound by his engagement but not by the terms of his office or employment to pay a certain proportion to the Government. There was no delegation to him of any authority for coercion or interference nor was he an assistant appointed to help any one who was vested with such authority. The duties which he performed were contractual duties fraudulent deception in the discharge of which might subject him to punishment for cheating but not duties attached to any office conferred on him or his predecessor in title, failure to perform which with integrity could make him liable, as an officer, to the special penalties prescribed for delinquent public servants. This decision in 12 Bom. H C R 1 came to be considered by the Calcutta High Court in Nazamuddin v. Queen. Empress (I L R 28 Cal. 344). The petitioner in that case was a peon attached to the office of the Superintendent of the Salt Department in the district of Mozaffarpur and he had been convicted under section 161, Penal Code. The contention urged on behalf of the petitioner was that he did not fall within the terms of the last portion of clause (9) of section 21, Penal Code which declared "every officer in the service or pay of Government" was a public servant because he was not an officer. The case of 12 Dom. H C R 1 was cited in support of that conten tion and the learned Judges of the Calcutta High Court observed at page 346 as under: "The learned Judges in that case had to consider whether a lessee from Government was on the conditions of his lease a public servant, and, in doing so, they considered generally the meaning of the term "officer". It was there held that an officer means `some person employed to exercise, to some extent and in certain circumstances, a delegated function of Government. He is either armed with some authority or representative character, or his duties are immediately auxiliary to those of some person who is so armed." The meaning which we are asked to put on those words seems to us to be too narrow as applied to the present case. The peon who has been convicted as a public servant is in service and pay of the Government, and he is attached to the office of the Superintendent of the Salt Department. The exact nature of his duties is not stated, because this objection was not taken at the trial, but e roust take it that, from the nature of his appointment, it was his duty to carry out the orders of his official superior, who undoubtedly is a public servant, and in that capacity to assist the Superinten dent in the performance of the public duties of his office. In that sense he would be an officer of Government, although he might not possibly exercise "any delegated function of the Government". Still his duties would be "immediately auxiliary to those of the Superintendent who is so armed". We think that an "officer in the service or pay of Government" within the terms of section 21, Penal Code is one who is appointed to some office for the perfor mance of some public duty. In this sense the peon would come within section 21, clause 9". The true test, therefore, in order to determine whether a person is an officer of the Government, is: (1) whether he is in the service or pay of the Government, and (2) whether he is entrusted with the performance of any public duty. If both these requirements are satisfied it matters not the least what is the nature of his office, whether the duties he is performing are of an exalted character or very humble indeed. As has been stated in Becon's Abridgement at Vol, VI. page 2, in the article headed "Of the nature of an officer and the several kinds of officers." "The word 'officium' principally implies a duty, and in the next place, the charge of such duty; and that it is a rule that where one man hath to do with another's affairs against his will, and without his leave, that this is an office, and he who is in it is officer". The next paragraph thereafter may also be referred to in this context: "There is a difference between an office and an employ ment, every office being an employment; but there are employments which do not come under the denomination of offices; such as an agreement to make hay, herd a flock, &c.; which differ widely from that of steward of a manor" &c. (Vide 12 Dom. H C R 1 at page 5). This was the sense in which the decision in 12 Bom. H C R 1 was understood by the learned Judges of the Lahore High Court in Ahad Shah v. Emperor (A I R 1918 Lah. 152 (2)), when they observed at page 157: "But it is not enough that a person should be in the pay or service of Government to constitute him a public servant within the meaning of section 21 (ninthly), I. P. C. He must also be an `Officer'. That expression is not, of course, to be restricted to its colloquial meaning of a Commissioned or non‑Commissioned Officer; it means a functionary or holder of some "officium' or office. The office may be one of dignity or importance; it may equally be humble. But whatever its nature, it is essential that the person holding the office, should have in some degree delegated to him certain functions of Government." The question for consideration before the learned Judges of the Lahore High Court was whether a Quarter Master's clerk was a public servant within the meaning of that expres sion in section 21, Penal Code. On the facts elicited before them the learned Judges came to the conclusion that the Quarter Master's clerk as such was just a Babu and no more 'an officer' than a labourer or menial employed and paid by Government to do public work See Queen v. Nachimuttu (I L R 7 Mad. 18) If therefore on the facts of a particular case the Court comes to the conclusion that a person is not only in the service or pay of the Government but is also performing a public duty, he has delegated to him the functions of the Government or is in any event performing duties immediately auxiliary to those of some one who is an officer of the Government and is therefore 'an officer' of the Government within the meaning of section 21 (9), Penal Code. Applying this test to the facts of the case before us, we find that the appellant was a Class III servant and was employed as a metal examiner known as Chaser in the Railway Carriage Workshop. He was working under the Works Manager who was certainly an officer of the Govern ment and the duties which he performed were immediately auxiliary to those of the Works Manager who, beside being an officer of the Government was also armed with some authority or representative character qua the Government. The appellant was thus, even on a narrow interpretation of the dicta of West, J., in 12 Bom. H C R 1 an officer in the service or pay of the Government performing as such a public duty entrusted to him by the Government and was therefore, a public servant within the meaning of section 21, Penal Code. This being the true legal position, this contention of the appellant also does not avail him and the first question must be answered against him. The appellant was, therefore, an officer within the meaning of section 21 (9) and therefore a public servant within the meaning of section 21, Penal Code, and being such public servant he fell within the definition of a public servant contained in section 2, Prevention of Corrup tion Act, II of 1947. He was, therefore, on the facts and circumstances of the case, rightly convicted under section 5 (1) (d) of Act II of 1947. His conviction and the sentence imposed upon him by the Courts below were therefore quite in order and this appeal must therefore stand dismissed. K.B.A. Appeal dismissed. P L D 1957 Supreme Court (Ind.) 176 Present: Bhagwati, Imam and Govinda Menon, JJ STATE OF MADHYA PRADESH‑Appellant Versus K. P. GHIARA‑Respondent Criminal Appeal No. 4 of 1955, decided on 19th September 1956 from Criminal Revision No. 209 of 1953, dated 30th October 1953, Nagpur.

Ss. 181 (2) & 182

Jurisdiction to try offence under S. 408, Penal Code‑‑Where and when the animus of misappropriation germinated, uncertain, S. 182 whether applies. Where, in a case for prosecution under section 408 of the Penal Code, there is doubt as to when the idea of embezzle ment took root, the only course for the prosecution is to apply the provisions of section 182 of the Criminal P. C. and file a charge‑sheet basing the same on uncertainty. The venue of enquiry or trial of such a case, is primarily to be determined by the averments contained in the complaint or charge‑sheet and unless the facts there are positively disproved, ordinarily the Court, where the charge‑sheet or complaint is filed, has to proceed with it, except where action has to be taken' under section 202 of the Criminal P. C. M. C. Setalvad, Attorney‑General, for India, T. L. Shevde, Advocate‑General, Madhya Pradesh, B. N. Sen. Senior Advocate (D. B. Pandhya and I. N. Shroff, Advocates with them) for Appellant. J. B. Dadachanji, Sri Narain Andley and Rameshwar Nath, Advocates of Messrs, Rajindra Narain & Co., for Respondent. JUDGMENT GOVINDA MENON, J.‑

On the 18th December 1951, the Inspector of Police C. I. D., Nagpur, filed a charge‑sheet, which was transferred for disposal to the 1st Class Magistrate, Nagpur, against the respondent herein, under section 408 of the I. P. C., on the footing that the respondent being the personal adviser of Sir Maneckji Dadabhoy, Cnairman and Managing Director of the Nagpur Electric and Power Co., Ltd.. Nagpur, and entrusted in that capacity with a car C. P. M‑9 Plymouth, belonging to the company for sale, sold the same to Dr. C. V. Patel on the 12th of January 1950, and embezzled the sale proceeds, with the result that an offence under the section aforesaid was committed by him. On objection being taken before the Magistrate that he had no jurisdiction to entertain the complaint, evidence was taken regarding that question and that officer by his order dated the 2nd December 1952, held that the offence under section 408, I. P. C., could be tried by him and directed the case to proceed. The respondent thereupon applied to the Sessions Court of Nagpur to revise the Magistrate's order referred to above and the learned Sessions Judge was of opinion that the provision of law applicable being section 182 of the Criminal P. C., the Nagpur Court had jurisdiction to entertain the complaint. On a further revision to the High Court of Nagpur, the orders of the Courts below were set aside on the ground that the proper Court to try the case was the one at Bombay and the proceedings were, therefore, quashed. Special leave to appeal against that order to this Court was granted to the State of Madhya Pradesh which is the appellant now before us. The venue of enquiry or trial of a case like the present is primarily to be determined by the averments contained in the complaint or charge‑sheet and unless the facts there are positively disproved, ordinarily the Court, where the charge‑ A sheet or complaint is filed, has to proceed with it, except where action has to be taken under section 202 of the Criminal P. C. On a review of the admitted and proved facts, the jurisdiction of the Nagpur Court cannot be doubted and we may, therefore, for the purpose of deciding the question of law, summarise the facts. There can be no question whatever that the respondent, as adviser to Sir Maneckji Dadabhoy, was an agent or servant of the company in question whose head office was situated at Nagpur where the books were maintained and the staff located. The Board of Directors functioned at Nagpur and the employment of the respondent was also at Nagpur, though he stayed for a time at Bombay. The entrustment of the car on the 12th January 1950, was also in Nagpur and the legal relationship between the respondent and the company was that of an agent and principal. Though the exact date of sale and the receipt of money cannot be ascertained with accuracy, it is clear that the sale took place in Bombay and the proceeds were paid over the respondent at Bombay between the 13th and the 14th of January 1950. It is also clear from the evidence that the respondent reached Nagpur on the 17th of January 1950, but the sale proceeds were not credited in the company's books, nor the money paid over to the company then or thereafter. Between the months, March and April 1950‑the respondent made at least six trips between Bombay and Nagpur, but there is no indication whatever that he paid over the amount to the company. It was only sometime in October 1950, when at a general meeting of the share‑holders of the company when Sir Maneckji Dadabhoy was questioned about the sale proceeds of the car and on his direction that the respondent would answer the interrogation, that the respondent replied that the proceeds were entered in the books of the company which admittedly was a false statement. On the above mentioned facts the prosecution alleges that there has been an embezzlement of the sale proceeds by the respondent which should be enquired into or tried under section 408 of the I. P. C. The learned Attorney‑General appearing for the State of Madhya Pradesh contends that in the circumstances it is uncertain whether the offence of embezzlement was commit ted at Bombay or Nagpur, and that being the case, para graph 1 of section 182 of the Criminal P. C. applies, with the result that the offence can be enquired into by a Court situated either in Nagpur or in Bombay. On the other hand, Mr. Dadachanji, counsel for the respondent, stressed that no question of uncertainty arises, because if at all there had been any dishonest intention to misappopriate the money that was on the 13th or the 14th of January 1950, the same having germinated immediately with no appreciable time intervening between the receipt of the money and the intention to em bezzle the same. If that be so, the offence can be enquired into or tried only by a Court situated in Bombay. The relevant section applicable to the case, according to the respondent, is section 181 (2) and not section 182 of the Criminal P. C. On the principle expressio unius est exclusio alterius (The express mention of one thing implies the exclusion of another) the contention is put forward that section 182, Criminal P. C. being the general provision, cannot be attracted when there is a special provision in section 181 (2) of the Criminal P. C. As stated already, the charge‑sheet does not either specifically or by necessary implication, refer to the embezzle ment in Bombay, nor does it indicate that it took place in Nagpur. The fact that the charge‑sheet was filed at Nagpur suggests that the prosecution considered Nagpur as the place where the offence was committed, but that is not conclusive and the place where the offence was committed still remains in doubt so far as that document is concerned. The learned Attorney‑General further contends that section 182, Criminal P. C., is a specific provision and not a general principle of law, and in fact, section 182 is supple mental to the 3rd clause of section 181 (2). We are of opinion that the contention on behalf of the State of Madhya Pradesh is well founded. A perusal of the evidence of P. W. 2 and P. W. 11 leads to the inference that prior to the respondent's leaving for Nagpur, he had not entertained or even been animated with an intention to misappropriate the sale proceeds; for one thing is clear and that is that the period that intervened between receipt of the money in Bombay and the accused's departure for Nagpur was too short and there is nothing to show that the respondent had utilised the funds during the period of his stay at Bombay for four days for his own use. If by the cross‑examination of the prosecution witnesses or by letting in evidence of a concrete character the respondent had shown when and where the animus of misappropriation had germinated, then the situation would have been different. On the very face of it, it is understandable as to why no such course was taken. The prosecution was in doubt as to when the idea of embezzlement, took root and the only course for the prosecution was to file a charge‑sheet in the manner it did basing the same on uncertainty. The finding of the learned Judge of the High Court that the intention to misappropriate was formed at Bombay, is unsupported by any evidence on record and therefore, the decided cases on which he placed reliance can have no appli cation. We cannot read the charge‑sheet as the learned Judge of the High Court has done in definitely fixing the place of embezzlement as Bombay. In the view which we take about the uncertainty of the place where the offence was committed, it is unnecessary to refer to or discuss the decisions relied on by the learned Judge of the High Court. Section 182, Criminal P. C., definitely applies and the order oil, the Nagpur High Court has, therefore, to be set aside and that of the Additional Sessions Judge restored. The 1st Class Magistrate of Nagpur will proceed with the inquiry from the stage it had reached before him. K.B.A. Appeal allowed. P L D 1957 Supreme Court (Ind.) 179 Present: Bhagwati, Imam and Govinda Menon, JJ MANGAL SINGH and others‑Appellants Versus STATE OF MADHYA BHARAT‑Respondent Criminal Appeal No. 33 of 1956, decided on 19th September 1956, from Criminal Appeal No. 19 of 1954 and Criminal Confirmation No. 3 of 1954, dated 5th April 1954, Madhya Bharat‑Gwalior Bench. (a) Constitution of India

Art. 136 (Constitution of Pakistan Art. 160)‑New plea. A point neither urged in the High Court nor taken in the petition for special leave, cannot be permitted to be raised at the stage of hearing of the appeal. (b) Evidence Act (I of 1872)

S. 54‑Evidence of bad character. Where evidence which disclosed certain unpleasant things about the accused in the past was examined by the Courts in order to ascertain the motive for the murder and not for the purpose of determining as to whether the accused were persons of bad character likely to commit murder. Held, that since the Courts did not use the evidence against the accused to support any doubtful evidence in the case, no prejudice was caused to the accused. (c) Criminal Procedure Code (V of 1898)

S. 367

Appreciation of evidence‑Evidence Act (I of 1872), Ss. 5 & 133 Interested witnesses. The proposition that when the eye‑witnesses to the occurrence were interested persons there should be corrobo ration of their evidence by independent witnesses cannot be of universal application. J. M. Anand and R. A. Govinda, Advocates for Appellants. Porus A. Mehta and R. H. Dhebar, Advocates for Respondent. JUDGMENT IMAM, J‑

This is an appeal by special leave against the decision of the Madhya Bharat High Court. The appellants were convicted under section 302, read with section 34 of the I. P. C. and sentenced to transportation for life for the murder of Suratsingh and Shardulsingh. They were also convicted under section 324 read with section 34, I. P. C. and sentenced to three years' rigorous imprisonment for having caused hurt to Suratsingh and Shardulsingh for causing injuries to them by shooting them with fire‑arms. The sentences of impri sonment were directed to run concurrently. The Sessions Judge had sentenced Mangalsingh to death and the other appellants to transportation for life for the murder of the deceased, but the High Court reduced the sentence of Mangalsingh to transportation for life. The Sessions Judge had framed charges under section 307/34 of the I. P. C. against the, appellants and, having found them guilty of it, sentenced them to 10 years' rigorous imprisonment. The High Court altered the conviction of the appellants under this charge to one under section 324/34 and reduced the sentence to three years' rigorous imprisonment. Four assessors assisted the Sessions Judge at the trial and they were of the opinion that the appellants were guilty of the charges framed against them. The murder of Suratsingh and Shardulsingh, who were brothers, is said to have taken place on the 7th of March 1953, at 6 p. m. on the Bhilsa‑Pachhar Road. The deceased had two brothers Surjansingh, P. W. 15 and Santokhsingh P. W.

16. An incident had taken place on the 7th of March 1953 at about 10 or 11 a. m. at Suratsingh's house at Hinnoda when the appellant Dalipsingh with Tarasingh came and invited Suratsingh and Shardulsingh for shikar. Suratsingh, however, was not willing to go. About 3 or 4 p. m. Suratsingh, Shardulsingh, Surjansingh and Santokhsingh went to bathe in a river near the village, which had not much water. Suratsingh and Shardulsingh were inside the water but Surjansingh and Santokhsingh were sitting on the bank of the river. Shortly thereafter the appellants arrived from the other side of the river. They had with them fire‑arms. They were also accompanied by Tarasingh, who had a revolver. He fired his revolver and hit Suratsingh on the left arm. The appellant Dalipsingh, who was armed with a rifle, fired his rifle at Shardulsingh and hit him on the leg Surjansingh and Santokhsingh ran away but returned later to the place and bandaged the wounds of Surantsingh and Shardulsingh. A bullock‑cart was fetched from Hinnoda. The injured persons were put on this cart in order that they may be taken to Pachhar Police Station. The cart after having traversed the kucha track came on the Bhilsa Pachhar Road. The appellants and Tarasingh came there. The appellant Mangalsingh ordered the others to kill the deceased and their brothers Surjansingh and Santokhsingh. He then fired at Shardulsingh hitting him in the chest. Surjansingh and Santokhsingh ran away. It was about 6 p. m. and getting dark. They heard sounds of some more gun‑fire. They further saw the appellants driving away the cart. Santokh singh and Surjansingh hid themselves in the jungle till about mid‑night and when the moon had risen they went to Chak Mullakhedi, where their uncle Dalipsingh P. W. 14, resided. In the morning they went to Hinnoda and informed Suratsingh's wife of the murder of Suratsingh and Shardul singh. They were told that the bullock of the bullock‑cart had returned in the course of the night. Surjansingh; Santoksingh, Dalipsingh and one Tejasingh then left for Pachhar Police Station in order that they may lodge a report at the Police Station; which was done at 9‑30 a. m. In the first information it had been mentioned that the cart was not seen on the road at the place where Surjansingh and Santokhsingh had seen it last. At a place between mile No. 4 and mile No. 5 of Bhilsa‑Pachhar metalled road a kucha path branches off towards village Devkhadi. Bhogi Chowkidar, P. W. 10, was on his way to Pachhar Police Station and while he was walking on the kucha track, he found there a cart, which was altogether burnt, and two charred bodies lying under the burnt wood of the cart and the burnt grass. He, therefore, proceeded to Pachhar Police Station and lodged a report about the finding of the two dead bodies. This in short is the case of the prosecution. One of the charred bodies was identified as that of Shardulsingh and it does not appear from the judgment of the High Court that any submission had been placed before it making the identification doubtful. Although the body of Suratsingh was also identified, the description of his body might have made the identification doubtful. The circum stances, however, make it quite clear that the two charred bodies could not have been the bodies of any other persons than Suratsingh and Shardulsingh. Indeed, it was not argued before us that the charred bodies were not of Suratsingh and Shardulsingh. What had been urged was that Suratsingh and Shardulsingh might have been killed at night when they might have gone to commit dacoity. The burnt bullock‑cart was found not far from the place where the deceased had been first attacked on the road. There is no evidence that anyone else's bullock‑cart was missing in that locality. There can therefore be no doubt that the two charred bodies lying under the burnt bullock‑cart, which were found by the Chowkidar were the bodies of Suratsingh and Shardulsingh and the cart belonged to them. The first incident of shooting at 3 or 4 p. m. on the 7th of March 1953, and the incident of shooting at 6 p. m. on the same day on Bhilsa‑Pachhar road was witnessed by Surjansingh, P. W. 15, and Santokhsingh, P. W.

16. These witnesses were believed by all the assessors, the Sessions Judge and the Judges of the High Court. On their evidence there can be no room for doubt that the appellants were guilty of the crime of murder and hurt to the deceased. Normally in such a case that would conclude the matter. It was, however, urged that there had been misjoinder of charges. This point does not seem to have been urged in the High Court because there is no reference to it in the judgment of that Court and does rot seem to have been taken in the petition for special leave. The appellant cannot, therefore, be permitted to raise this question at this stage. It was next urged that a great deal of evidence in the nature of bad character of the appellants had been admitted to the prejudice of the appellants, that such evidence was inadmissible and the Courts below must have been prejudiced against the appellants by such evidence. It seems to us, however, that the evidence which discloses certain unpleasant things about the appellants in the past was examined by the Courts in order to ascertain the motive for the murder and not for the purpose of determining as to whether the appellants were persons of bad character likely to commit B murder. Some of the evidence also showed that at least some of the appellants could have been in possession of fire‑arms. It does not appear to us, on examination of the judgments of the Courts below, that any part of this evidence was uses by them against the appellants in order to support any doubtful evidence in the case. The conviction of the appellants was based entirely upon the evidence of Surjan singh, P. W. 15 and Santokhsingh, P. W.

16. It was suggested that when the two eye‑witnesses to the) occurrence were interested persons there should be corroboration of their evidence by independent witnesses. It seems to us that this is a proposition which cannot be of universal application. In the present case, evidence of the eye‑witnesses receives ample corroboration from the circum stances that the dead bodies of Suratsingh and Shardulsingh and the burnt bullock‑cart were found not far from the place where they were first attacked by the appellants. It seems to us that the matter is concluded by the evidence of the two witnesses whose testimony was accepted by the Courts below and no substantial question has arisen in this appeal for this Court to interfere with the findings of fact arrived at by both the Courts below. The appeal is accordingly dismissed. K. E. A. Appeal dismissed. P L D 1957 Supreme Court (Ind.) 183 Present: Bhagwati, Imam, S. K. Das and Govinda Menon, JJ PERSHADI‑Appellant Versus STATE OF UTTAR PRADESH‑Respondent Criminal Appeal No. 45 of 1955, decided on 25th September 1956. (a) Constitution of India

Arts. 136 and 134 (Constitution of Pakistan, Arts. 160 and 159)‑Certificate by High Court under S. 134 defective‑Supreme Court has power to grant special leave if circumstances admit. Even if the certificate granted by the High Court for leave to appeal to the Supreme Court was defective, the Supreme Court has power to grant special leave if the circumstances of the case admit. (b) Evidence Act (I of 1872)

S. 114‑False denial of relevant facts by accused. Where the accused falsely denied several relevant facts which had been conclusively established, the Court would be justified in drawing an adverse inference from this against the accused. Pulkuri Kottaya v. Emperor A I R 1947 P C 67 ref. G. C. Mathur, Advocate for Appellant. S. P. Sinha, Senior Advocate (C. P. Lal, Advocate with him) for Respondent. JUDGMENT IMAM, J.‑

The appellant was sentenced to trans portation for life by the Temporary Sessions Judge of Aligarh for the murder of Chimmanlal aged about six ,years. He appealed against his conviction to the Allahabad High Court and his appeal was heard by Desai, J, and Mehrotra, J. There was a difference of opinion between them, Desai, J. being of the opinion that the appellant was guilty of the offence of murder while Mehrotra, J. was of the opinion that he was not guilty. The case was then placed before a third Judge of the High Court and it was heard by Agarwala, J. who agreed with Desai, J. Accordingly, the appellant's convic tion for murder was upheld and his appeal was dismissed. The High Court certified the case as a fit one for appeal to this Court. It is said that Chimmanlal was murdered on or about 2nd December 1950. On that date Chimmanlal had left his father's shop at about 5 p. m. to go home which was a short distance away. He, however, never reached home. His father Shanker Lal came home at about 6 p. m. and did not find him. He searched for the boy. He sought information from the appellant but got a reply the significance of which will be considered later. Next day, at about 9 a. m., he lodged a report at the Police Station, Hathras about the disappearance of his son. He mentioned no one as a suspect responsible for the disappearance of his son. On 9th Decem ber 1950, one Gian Chand resident of village Jogia, which is adjacent to the village of the appellant had gone to his well to fix a Persian wheel and he found that some foul smell was coming out of the well. Having looked into the well he found a corpse floating in it. Lohrey Chowkidar was informed by him and an information was sent to the Police Station. A Police Officer came and took out the dead body. On that body there was only one black pyjama. Shanker Lal's father Puran Mal was called there and he identified the body as that of Chimmanlal. The body was sent to the Police Station and there Shanker Lal also identified it as his son's body. The body was highly decomposed. No injuries were found on it and the doctor could not give any opinion of the cause of death due to decomposition. On 11th December 1950, the appellant was arrested. When he was being taken to the Police Station, he informed the police that he would produce the clothes of the dead Chimmanlal. The appellant took the police to the top of a brick‑kiln, removed the earth from the hole and took out the clothes. These clothes have been identified as belonging to the deceased Chimmanlal. Several circumstances were relied on by Agarwala, J. in coming to the conclusion that the appellant was guilty of murder. In the first place, there was a motive to commit the murder. In the second place, the appellant had held out a threat against the deceased's father Shanker Lal to the effect that he would take revenge against him. In the third place, the appellant had access to the deceased and was in a position to induce him to go along with him and thus the appellant had the opportunity to kill him. In the fourth place, the clothes of the deceased were handed over by the appellant to the police and in the fifth place, the appellant falsely denied several relevant facts which had been conclusively established. Agarwala, J. however, thought that none of them singly was sufficient to establish that the appellant was guilty of the murder of the deceased but the cumulative effect of all of them led to the irresistible conclusion that it was the appellant who had removed the clothes of the deceased, was privy to his murder and hid the clothes at the top of the brick‑kiln. Before we consider the submission made by Mr. Mathur, on behalf of the appellant, that the circumstances were not sufficient to establish that the appellant had murdered the deceased, it is necessary to point out that on behalf of the State a preliminary objection was made that the appeal was not maintainable as the High Court had granted a defective certificate. Reference was made to certain decisions of this Court where it was held, in the circumstances of those cases that the certificates granted were defective. In the present case, it appears to be likely that when the opinion of the third Judge had been pronounced the Court proceeded to dismiss the appeal and at this stage an oral application was made for a certificate to appeal to this Court. The High Court might have thought that in granting the certificate as a part of its order in the appeal before it, the points arising in the appeal, apparent on the face of the judgments of the learned Judges, might be regarded as the grounds upon which the certificate was granted. In any event, even if the certificate was defective, it is open to this Court to grant special leave. We think that this is a case in which, having regard to the circumstances of the case, special leave would have been granted if the appellant had the occasion to file such an application and we grant special leave assuming that the certificate granted in this case is defective. We now proceed to consider whether the circumstantial evidence in the case is sufficient to convict the appellant for the offence of murder. A few facts require to be stated con cerning the motive for the appellant to murder the deceased and the threat of revenge on Shanker Lal alleged to have been uttered by him. The appellant is a resident of village Ramanpur which is not far from the town of Hathras. Shanker Lal, father of the deceased had a Halwai shop at Hathras. The appellant was in his service. There was a theft in the shop of Shanker Lal and concerning it information was lodged at the Police Station on 1st November 1950, implicating the appellant and one Charna. Both these persons were arrested. Charna was sent to jail and the appellant was put up in the lock‑up and released on furnishing security. The next day, he pointed out the place where the stolen safe of Shanker Lal had been kept and Shanker Lal got back his stolen property. While the appellant was in the lockup, he told not Ramnath P. W. 6, and Jawala Prasad, P. W. 10 that he would take revenge on Shanker Lal when got out of Jail. After he was released from the lock up he repeated his threat in the presence of Zahar Mal, P. W.

4. In the theft case the appellant and Charna were ultimately convicted in 1951, under section 381, I. P. C. There is no reason to doubt the evidence concerning the threat held out by the appellant and that evidence was rightly accepted by the Courts below. On behalf of the appellant, it was urged that the threat was held out to Shanker Lal. Whatever motive it may provide for the appellant to commit an offence against Shanker Lal, it did not provide a motive for the appellant to murder Shanker Lal's son Chimmanlal. We are unable to accept this contention. The threat held out by the appellant was to take revenge on Shanker Lal. The manner in which the revenge would be taken was not disclosed by the appellant and it is difficult to conceive what more affective revenge he could have taken against Shanker Lal than to kill his young son. We are, therefore, satisfied that there was motive for the appellant to commit the murder and that he had uttered the threat as spoken to by the prosecution witnesses. So far as the access to the deceased is concerned, there is no evidence that the appellant was seen mixing with the deceased on the day he disappeared or shortly before it. Nor is there any evidence that the deceased was last seen alive in the company of the appellant. Since the deceased was a child and the appellant had been his father's servant at one time, it is not improbable if the appellant had induced him to go along with him when a convenient opportunity arose for the same. We would, however, not lay too much stress upon this circumstance. The fourth circumstance, that the clothes of the deceased were handed over by the appellant to the police is a very important circumstance in the case. The Sub‑Inspector deposed to the effect that the appellant had stated that he would give the clothes of Chimmanlal, which he had placed in a pit above a brick‑kiln, and that thereafter the appellant, in the presence of witnesses dug the pit in the brick‑kiln and took out the clothes. Exhs. 1‑5, which were a woollen khaki kurta, a Jawahar cut of check design a sleeveless sweater, a full sleeved white sweater and a white vest, have been identified by reliable evidence as the clothes of the deceased. Agarwala, J. however, thought that as other witnesses had not spoken about this statement of the appellant, it had not been proved that the appellant had stated to the Police Officer that he had placed the clothes in a pit above the brick‑kiln. On the question of admissibility of the appellant's statement to the police, Agarwala, J, thought it to be admissible and and we think rightly, having regard to the decision of the Privy Council in Plukuri Kotayya v. Emperor (ILR 1948 Mad.1: AIR 1947 PC 67). Sir John Beaumont in delivering the judgment of the Privy Council set out the entire statement made by the accused No. 6 to the police and held that the whole of that statement except the passage "I hid it (a spear) and my stick in the rick of Venkatanarasu in the village. I will show if you come" was inadmissible. In other words, the statement "I hid (a spear) and my stick in the rick of Venkatanarasu in the village. I will show if you come" was admissible. In the course of the judgment, Sir John Beaumount observed. "In their Lordships' view it is fallacious to treat the "fact discovered; within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or to the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in the custody that, "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is used in the commission of the offence, the fact discovered is very relevant." We can see no good reason for disbelieving the Police Officer regarding the statement made by the appellant. An examination of the Sub‑Inspector's evidence does not disclose any circumstance which would justify us in holding that he was not speaking the truth. As has already been stated, the body of the deceased when taken out of the well had only one black pyjama on it. It is unlikely that in the month of December a little child, like the deceased, would be wearing only a pyjama, particularly when he had warm clothes. Whoever was responsible for his death had evidently taken off all his clothes except the pyjama either to prevent identification thereafter or to make a profit out of it or both. On behalf of the appellant it was urged that the recovery of the deceased's clothes at the instance of the appellant may be proof of his concealing evidence of murder but it was not a sufficiently incriminating circumstance to show that he was the murderer or privy to the murder. It was suggested that Charna may have been responsible for the murder as he had also been prosecuted by Shanker Lal for theft. It was further suggested that the appellant's father may have had a hand in the murder and the appellant merely had the knowledge as to where the clothes of the deceased had been kept. It may be stated that this suggestion about the father had never been made anywhere before and there is nothing on the record by which it could even remotely be suggested that the appellant's father comes into the picture at all. So far as Charna is concerned, Agarwala, J. has given good reasons for discarding the suggestion. In view of the appellant's statement that he had hidden the clothes, it is impossible the accept the suggestion put forward. The brick‑kiln where the clothes were found was in village Jogia, adjacent to the village of the appellant and the latter village is only eight furlongs from Hathras where the deceased lived. The fact that the appellant hid the clothes of the deceased clearly indicated his guilty knowledge and is consistent only with his having murdered the deceased. So far as the fifth circumstance is concerned the appellant s total denial that he was ever in the service of shankar Lal that Shankar Lal had implicated him in the theft case that he knew the deceased and that he pointed out the clothes of the deceased at the top of the brick kiln is a conduct inconsistent with his innocence. These denials were made in order to disclaim all connections with Shanker Lal, with the deceased and with the latter's clothes. A Court could therefore be justified in drawing an adverse inference from this against the appellant in the circumstances of the case. It is to be noticed that in the course of cross‑examination of Shanker Lal, he had been questioned as to whether he had gone to the house of the appellant in the night of the day the deceased was missing and before he lodged his report at the Police Station and the witness replied in the affirmative. He was then questioned as to whether he had asked the appellant whether he bad removed deceased to which the witness replied in the affirmative and stated that the appellant had stated to him, "I have thrown him in the "Bahar" (furnace)." The Courts below were disinclined to consider this as an incriminating circumstance against the appellant because the statement was made in anger. That the appellant made the statement appears to be beyond doubt and even if the statement was made in anger, it is a statement of considerable significance in the present case. The statement is tantamount to the appellant intimating to Shanker Lal that he had done away with the deceased and carried out his threat. It is true that the deceased's body was not found in a furnace but in a well, but that is of little consequence. What is important is that soon after the deceased was found to be missing the appellant made a statement indicating that he had a hand in his disappearance by throwing him in a furnace. We have considered the circumstantial evidence in the case, and, are of the opinion, that it is consistent only with the guilt of the accused and that it is inconsistent with any other rational explanation. The only reasonably conclusion, from the circumstances proved in this case, is that the appellant committed the murder. He was, therefore, rightly convicted and the appeal is accordingly dismissed. K. B. A. Appeal dismissed. P L D 1957 Supreme Court (Ind.) 188 Present: S. R. Das, C. J. Venkatarama Ayyar and Imam, JJ SREE MEENAKSHI MILLS LTD., MADURAI‑Appellants Versus COMMISSIONER OF INCOME‑TAX, MADRAS

Respondent Civil Appeals Nos. 124 to 126 of 1954, decided on 26th September 1956, from C. M. P. Nos. 10425, 10426 and 10427 of 1951, dated 10th March 1952. (a) Income‑tax Act (XI of 1922)

S. 66 (1) & (2) Subject of reference under section 66(1)‑Finding on question of fact‑When open to attack in review as erroneous in law‑Inference from fact‑Whether and when can be question of law‑Civil Procedure Code (V of 1908), Ss. 100 & 101. Under section 66 (1), it is only a question of law that can be referred for decision of the Court. A finding on a question of fact is open to attack as erroneous in law only if it is not supported by any evidence, or if it is unreasonable and perverse, but that where there is evidence to consider, the decision of the tribunal is final even though the Court might not, on the materials, have come to the same con clusion if it had the power to substitute its own judgment. G. W. Rly. Co. v. Baler (1922) 8 Tax Cas. 231 rel. When a conclusion has been reached on an appreciation of a number of facts established by the evidence, whether that is sound or not must be determined not by considering the weight to be attached to each single fact in isolation, but by assessing the cumulative effect of all the facts in their setting in the picture as a whole. Edwards (Inspector of Taxes) v. Bairslow (1955) 28 1 T R 579 rel. Where a finding is given on a question of fact based upon an inference from facts that is not always a question of law. The proposition that an inference from facts is one of law will be correct in its application to mixed questions of law and fact but not to pure questions of fact. Herbert v. Samuel Fox & Co. Ltd. (1916) 1 A C 405 rel. Inferences from facts may themselves be inference of fact and not of law, and such inferences are not open to review by the Court. Inferences from facts would be question of fact or law according as the point for determination is one of pure fact or mixed questions of law and fact. The position for making reference under section 66 is: (1) When the point for determination is a pure question of law such as construction of a statute or document of title, the decision of the Tribunal is open to reference to the Court under section 66 (1). (2) When the point for determination is a mixed question of law and fact, while the finding of the Tribunal on the facts found is final its decision as to the legal effects of those findings is a question of law which can be reviewed by the Court. (3) A finding on a question of fact is open to attack under section 66(1) as erroneous in law when there is no evidence to support it or if it is perverse. (4) When the finding is one of fact, the fact that it is itself an inference from other basic facts will not alter its character as one of fact. (b) Benami transaction‑Word `Benami'‑What it connotes. The word `benami' is used to denote two classes of transactions which differ from each other in their legal character and incidents. In one sense, it signifies a transac tion which is real, as for example, when A sells properties to but the sale‑deed mentions X as the purchaser. Here the sale itself is genuine, but the purchaser is B, X being his benamidar. This is the class of transactions which is usually termed as benami. But the word `benami' is also occasionally used, perhaps not quite accurately, to refer to a sham transaction, as for example, when A purports to sell his property to B without intending that his title should cease or pass to B. The fundamental difference between these two classes of transactions is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none such, the transferor continuing to retain the title notwithstanding the execution of the transfer deed. It is only in the former class of cases that it would be necessary, when a dispute arises as to whether the person named in the deed is the real transferee or B, to enquire into the question as to who paid the con sideration for the transfer, X or B. But in the latter class of cases, when the question is whether the transfer is genuine or sham, the point for decision would be, not who paid the consideration but whether any consideration was paid. It is most unreal question to raise of firms and companies whose only business consists of sham transactions as to who found the capital for them or who was running them. (e) Income‑tax Act (XI of 1922)

S. 4 (1) (b)‑Company assessee‑Income accruing and arising‑Accrual of income and disposal of it‑Liability to tax attaches to income as soon as it accrues. If an individual were to sell goods and receive the prices therefore, that would be income accrued or arisen, liable to tax in his hands even though he should have failed to enter it in his accounts. A party cannot avoid tax by adopting the simple expedient of not disclosing its receipts in his books. That will be a case of income accrued or arisen but concealed and not of income not accrued or arisen. Income which has accrued to an assessee might remain un disposed by him, but the liability to tax attaches to it under the provisions of the Income‑tax Act as soon as it accrues. It is no concern of the revenue how and when profits are disposed of by the assessees, and for this purpose it makes no difference whether the assessee is an individual or a company, both of them being equally liable to tax on income and profits when they have arisen or accrued. The provisions of the Companies Act as to the disposal of profits are designed to protect the interest of the shareholders and have no effect on the right which the State has under the provisions of the Income‑tax Act to impose a tax on income when it arises or accrues. P. R. Das and B. Sen, Senior Advocates (V. Sethuraman and S. Subramanian, Advocates with them), for Appellants. C. K. Daphtary, Solicitor‑General for India, (Ports A. Mehta and R. H. Dhebar for P. G. Gokhle, Advocates with him) for Respondent. JUDGMENT VENKATARAMA AYYAR, J.‑

These appeals arise out of orders of assessment made on the appellant by the Appellate Tribunal, Madras Bench, for the years of account 1941‑42. 1942‑43 and 1943‑

44. The appellant applied under section 66(1) of the Indian Income‑tax Act (hereinafter referred to as the Act) to refer to the High Court certain questions which according to it arose out of the orders; but the Tribunal rejected the applications. The appellant then moved the High Court under section 66 (2) of the Act for an order requiring the Tribunal to refer those questions to the Court, but the learned Judges held that the question on which reference was sought by the appellant were pure questions of fact, and dismissed the applications. The matter now comes before us by way of special appeal: The facts material for the purpose of these appeals may shortly he stated. The assessee is a public company registered under the Indian Companies Act, and its Managing Agents are the firm of Messrs K. R. Thyagaraja Chettiar & Co., whose partners are Mr. Thyagaraja Chettiar and his two sons. The company is resident and ordinarily resident in British India, its head office being at Madurai in the Madras State. It carries on business in the manufacture and sale of yarn, and for the purpose of that business it purchases cotton and occasionally sells it. Its profits arise for the most part from the sale of yarn and to some extent from the re‑sale of cotton. According to the account books of the company, its profits from business for the account year 1941‑42 were Rs. 9,25,364, for 1942‑43 Rs. 24,09,832, and for 1943‑44 Rs. 29,13,

881. In its returns, the appellant showed these amounts as its income chargeable to tax for the respective years. The Department did not accept the correctness of the figures as shown in the accounts. It contended that the company had earned more profits than were disclosed in its accounts, and that it had contrived to suppress them by resort to certain devices. According to the Department, the scheme revolved by the appellant for this purpose was this: Suppose the Company sold 25 bales of yarn to X for the 50,000 at the then market rate and received the full amount of the price. The books of the Company would show neither the sale to X nor its receipt of R's. 50,

000. Instead, there will be an entry in its books showing the sale of these very bales to A for Rs. 20,000 which will be about the cost price and in the books of A these goods will be shown as sold by it to X for Rs. 50,

00. If the sale by the company to A and the connected sale by A to X were, genuine, the Company would have made no profit on the sale, whereas A would have made a profit of Rs. 30,000 on it. But, in fact, both these sales were sham transactions; the only sale that took place was that by the Company to X and the price actually received by it was not Rs. 20,000 but Rs. 50,

000. As a result of these paper transactions and Manipulations, the profit of Rs. 30,000 made by the Company was suppressed. This process was reversed when the Company purchased cotton. This appellant purchased, let us say, 100 bales of cotton from X for a price of Rs. 5,000, and paid that amount to X. Neither this purchase from X nor the payment of Rs. 5,000 to him would appear in the books of the Company. Instead, the books of A will show these goods as purchased by it from X for Rs. 5,000, and the books of the appellant will show a purchase from A of those very goods for Rs. 8,

000. Both these sales were fictitious, the only real transaction was the sale by X to the Company and the price actually paid therefore by the Company was only Rs. 5,

000. By the device of sale by X to A and by A to the Company, the cost price had been 'inflated by Rs. 3,000, and the real profit had been concealed to that extent. The accounts of the Company, therefore, did not reflect the true position as to the profits actually made by the appellant. The names of the intermediaries who according to the Department played the role of A in the above illustration and they will hereafter be referred to simply as intermediaries‑are given below with the amount of profits made on the sale of yarn in their name and concealed, or the extent of the cost price inflated on the purchase of cotton from them, as found by the Tribunal: 1941‑42 Rs.

1. Meenakshi & Co. Sale of yarn 35,830

2. Sivagami & Co. ditto 35,443

3. Mangayarkarasi & Co. ditto 34,579

4. Alagu & Co. Purchase of cotton 34,003 1942‑43

1. Meenakshi & Co. Sale of yarn 53,635

2. Sivagami & Co. ditto 58,103

3. Rukmani & Co. Ltd. and}

4. Sivagami & Co. Ltd. } Sale of yarn 3,97,467

5. Rukmani & Co. Ltd. Purchase of cotton 33,533 1943‑44

1. Pudukottah & Co. Ltd. Sale of yarn 18,99,488 ditto Purchase of cotton 12,703

2. Rukmani & Co. Ltd. ditto 22,504

3. Rajendra Ltd. Sale of yarn 1,06,436 The contention of the Department was that the amounts shown as profits made by the intermediaries and mentioned above represented in fact that profits actually earned by the appellant, and that they should be added to the figures shown in its accounts as its profits. The appellant contested this position, and maintained that the state of affairs disclosed by its accounts was true, that its sales in favour of the intermediaries were genuine, and that, in fact, little or no profits were made by it in those transactions, that it purchased cotton only from the intermediaries and did pay them the amounts as shown in the accounts. These contentions were closely examined by the Income‑tax Officer in the first instance, then again by the Appellate Assistant Commissioner on appeal, and finally by the Appellate Tribunal, and and on an elaborate consideration of the materials placed before them, they held that the following facts were established: "(1) The sale of yarn by the appellant to the inter mediaries mentioned above was for a price very much below the market rate, often for the cost price and some times for even less. No acceptable explanation had been given for this unusual feature. The yarn was in that period a scarce commodity, and it was a seller's market. The amounts lost by the Company on these transactions during the three years, if they were genuine, would far exceed Rs. 25 lakhs. The sales therefore were not bona fide. (2) The firms of Meenakshi & Co., Sivagami & Co., Mangayarkarasi & Co., and Alagu & Co., who were the intermediaries for the year 1941‑42 were all newly started for the first time in 1941. The partners of the firm were men of no means, and were all relations of Mr. Thyagaraja Chettiar, the Chief partner of the Manag ing Agents firm and a dominant figure in charge of the Company's affairs. None of them had done any business in yarn before. The personnel of these firms was drawn in different combinations from a group of half a dozen persons who were all the creatures of Mr. Thyagaraja Chettiar. (3) During the year 1942‑43, two of the firms, Mangayarkarasi & Co., and Alagu & Co., were closed, and their place was taken by two private limited com panies called Rukmani & Co., Ltd. and Sivagami and Co. Ltd. The shareholders of these companies were again drawn from the small group of persons who were partners of the firms, and they were all Mr. Thyagaraja Chettiar's men. These companies declared no dividends, even though they made considerable profits and the shareholders received no dividends nor even statements of accounts. In truth, they had no beneficial interest in the concerns. (4) The business of the intermediaries, both firms and the companies, consisted solely in the purchase of yarn from the appellant and not from any other person, and the entirety of the yarn purchased was sold by them en bloc to constituents of the appellant. Thus, the business of the intermediaries was, in fact only a part of the business carried on by the appellant. (5) The sales by the appellant in favour of these intermediaries were of large quantities of yarn and some times on a scale far higher than other genuine commercial transactions, as for example, the sale of 1,850 bales on 17th April 1942 to Rukmani & Co. No securities were taken from the intermediaries for this transaction. Having regard to the magnitude of the business, the capital or the intermediaries even on paper was negligible. (6) The intermediaries had most of them no offices of their own. Even when they had offices, these were arranged by the officers of the appellant. The concerns had no godowns, and their staff was meagre and recruited from the employees and servants of the appellant. Apart from signing the contracts, the intermediaries did nothing. (7) The profits earned by the firms were shown in their books as such in their possession, but on a surprise raid the authorities were unable to discover any cash with them. The amount as shown as profits in their accounts was, in fact, in the possession of the appellant‑Company. (8) The intermediaries had, in fact, never to pay to the appellant for any of the purchases made by them, the course of the business being that they sold the goods purchased from the appellant to its old customers, who paid therefore. (9) The intermediaries did not issue any delivery orders on the appellant in favour of the customers to whom they ostensibly sold the goods, but the goods were despatched directly by the appellant to the customers and delivered to them. (10) The customers to whom the goods were delivered by the appellant as aforesaid paid the full price for which they purchased them from the intermediary firms, not to those firms with whom alone they had privity of contract but to the appellant direct, and these payments appear as receipts in the books of appellant. (11) After the Limited Companies were started in 1942‑43 and 1943‑44, the course of business adopted by the appellant showed a futher mystification. There was firstly a sale of certain quantity of yarn by the appellant to company A, which sold it in turn to company B which in turn sold it to C, which ultimately sold it to the usual customers of the appellant. In spite of the number of links between the appellant and the customers, the goods were directly despatched by the former to the later, who paid by cheques the full amount due by them to their seller C, who straightway endorsed them in favour of the appellant. The intermediaries A and B did no act, and took no part in the ultimate payment of the price by the purchasers. (12) Some of the intermediaries, firms and companies had been formed in Pudukottah State. At that time, that State was foreign territory, and the profit earned there would become taxable only if it was remitted to British India. Pudukottah is neither a cotton producing area, nor was a market for cotton there. The object with which the intermediaries had been set up in Pudukottah was obviously to screen portions of the profit earned by the appellant. On these facts, the Tribunal came to the conclusion that the contentions of the Department had been fully established, namely, that the intermediaries were dummies brought into existence by the appellant for concealing its profits, that the sales standing in their names were sham and fictitious, and that the profits ostensibly earned by them on those transactions were, in fact, earned by the appellant, and should be added to the amounts shown as profits in its accounts. The point for decision is whether there arises out of the order of the Tribunal any question which can be' the subject of reference under section 66 (1) of the Act. Under that section, it is only a question of law that can be referred for decision of the Court, and it is impossible to argue that the conclusion of the Tribunall'9 is anything but one of fact. It has been held on the corresponding provisions in the English Income‑tax statutes that a finding on a question of fact is open to attack as erroneous in law only if it is not supported by any evidence; or if it is unreasonable and perverse, but that where there is evidence to consider, the decision of the Tribunal is final even though the Court might not, on the material, have come to the same conclusion if it had the power to substitute its own judgment. In G. W. Rly. Co. v. Bater ((1922) 8 Tax Cas 231 at p. 244), Lord Atkinson observed: "Their (Commissioner's) determinations of questions of pure fact are not to be disturbed, any more than are the findings of the jury, unless it should appear that there was no evidence before them upon which they, as reasonable men, could come to the conclusion to which they have come: and this, even though the Court of Review would on the evidence have come to a conclusion entirely different from theirs." There is no need to further elaborate this position, because the law as laid down in these observations is well settled, and has been adopted in the construction of section 66 of the Act. Now, the determination of the Tribunal in the present proceedings being one of fact, it is open to review by the Court only on the ground that it is not supported by any evidence or that it is perverse. The appellant understood this position quite correctly, and in its application under section 66 (1) it stated the only question which it wanted the Tribunal to refer to the Court with reference to the present controversy in the following terms: "Whether on the facts and in the circumstances of the case there is any legal evidence to support the finding that the four firms, Meenakshi Co., & Savagami & Co., Mangayar karasi & Co., and Alagu & Co., were benamidars for the appellant and that the profits made by these firms were profits made by the appellant." This was for the accounting year 1941‑

42. The question was similarly worded for the subsequent years also except that the names of the intermediaries were different for the different years. The question as framed assumes, it will be noted, that the Tribunal had held that the intermediaries were benamidars for the appellant, and on this assumption were grounded several contentions which were pressed on behalf of the appellant. Whether this assumption and the con tentions based thereon are well‑founded is a different matter, and will be considered in the due course. But apart from that, it will be seen that the only ground of attack which was directed against the finding of the Tribunal was that there was no legal evidence. This is of course a conten tion open to the appellant; but has that been substantiated? Mr. P. R. Das, learned counsel for the appellant, did, at the start, put his contention as high as that. But it became abundantly clear when his argument began to unfold itself that it amounted to no more than that this that the conclusion drawn by the Tribunal from the facts found by it was unsound and erroneous. He did not, it must be stated, dispute the facts themselves, but he took them one after another, and contended that they were susceptible of inferences other than those drawn by the Tribunal. He next offered explanations for them which would make them con sistent with the contention of the appellant. And he finally wound up by saying that the conclusion reached by the Tribunal was not justified. This clearly is an erroneous approach to the whole question. When a conclusion has been reached on an appreciation of a number of facts established by the evidence, whether that is sound or not must be determined not by considering the weight to be attached to each single fact in isolation, but by assessing C the cumulative effect of all of the facts in their setting in the picture as a whole. In Edwards (Inspector of Taxes) v. Bairstow ((1955) 28 I T R 579) Lord Redcliffe stated: " . . . . I think that it is rather misleading to speak of there being no evidence to support a conclusion when in cases such as these many of the facts are likely to be neutral in themselves, and only to take their colour from the combination of circumstances in which they are found to occur." This furnishes the corrective to the course adopted by counsel for the appellant in his argument. And a more serious objection to it, and one of substance is that it relates merely to matters of appreciation of evidence, and does not support the position that there is no legal evidence in support of the finding of the Tribunal. For example, one of the facts on which the Tribunal relied for its conclusion was that the partners of the intermediary firms were new to yarn business and came on the scene for the first time in 1941. The appellant contends that no significance could be attached to this, as the partners belonged to the Nattukkottai Chetti caste, which was a trading community. But surely this does not render the evidence irrelevant or inadmissible. It only affects the weight to be attached to it. Then again, the Tribunal has made a point of it that the goods were sold by the appellant to the intermediaries for a price far below the market price, sometimes even below the cost price. The answer of the appellant to this was that they were forward contracts and that the price of yarn on the dates of those contracts was low. But the Tribunal declined to accept this explanation for the reason‑and that, a good one‑that there were no contract registers from which the dates on which the contracts were entered into could be verified, and that the contract notes themselves were not serially numbered. If this is not a matter of pure appreciation of evidence, it is difficult to see what else is. The Tribunal also referred to the fact that the only business which the intermediaries did was to purchase yarn from the appellant and sell it to its own constituents. The answer of the appellant to this was that there was no need for the intermediaries to purchase from other manufactures when all their needs were met by the appellant and that there was nothing unusual in their selling all their yarn to its customers. It is unnecessary to say anything about the worth of this conten tion, for that is a matter exclusively for the Tribunal to assess. What has now to be considered is whether this circumstance on which the Tribunal relied is or is not cogent evidence in support of its conclusion. It will be preposterious to contend that it is not. No useful purpose will be served by examining the contentions of the appellant with reference to the other facts on which the Tribunal relied for its con clusion. They are of the same pattern as the above, and bear, at their best, on the weight to be attached to the facts and not to their relevancy or admissibility and there is no question of want of legal evidence in support of the conclusion of the Tribunal. Reference should also be made in this connection to another contention which was pressed by Mr. P. R. Das at a later stage of the argument. He contended that the facts found showed that the intermediaries were benamidars not for the appellant but for Mr. Thyagaraja Chettiar of the Managing Agents firm. The significance of this contention lies in this that it grants‑and Mr. P. R. Das was quite frank about it‑that the facts found did point to the fact that the intermediaries were dummies, leaving outstanding for decision only the question whether on the evidence they were benamidars for the appellant or for Mr. Thyagaraja Chettiar. That is a question which will be separately con sidered. But it is manifest that this argument is destructive of the contention of the appellant that there is no legal evidence to support the conclusion of the Tribunal that the intermediaries were mere dummies. The result then is that the finding of the Tribunal viewed as one of fact, which in truth it is, is supported by evidence, and is not unreason able and is not open to attack on any of the grounds on which such a finding could be assailed in a reference under section 66 (1). It was next contended for the appellant that inference from facts was a question of law, and that as the conclusion of the Tribunal that the intermediaries were dummies and that the sales standing in their names were sham and fictitious was itself an inference from several basic facts found by it, it was question of law and that the appellant had the right under section 66 (1) to have the decision of the Court on its correctness, and support for this position was sought from certain observations in 1955‑28 I T R 579 Bomford v. Osborne (1942 A C 14: 1942‑10 I T R (Sup.) 27), Thomas Fattorine (Lancashire) Ltd. v. Commr. Of Inland Revenue (1942 A C 643: 24 Tax Cas 328), Cameron v. Prendergast (1940 A C 549: (1940) 8 I T R (Sup.) 75) and Gramophone &. Typewriter Ltd. v. Stanley ((1908) 2 K B 89: 5 Tax Cas 358). At the first blush, it does sound somewhat of a contradiction to speak of a finding of fact as one of law even when that finding is an inference from other facts, the accepted notion being that question of law and of fact from antithesis to each other with spheres distinct and separate. When the Legisla ture in terms restricts the power of the Court to review decisions of Tribunals to questions of law, it obviously intends to shut out questions of fact from jurisdiction. If the contention of the appellant is correct, then a finding of fact must, when it is an inference from other facts, be open to consideration not only on the ground that it is not supported by evidence or perverse but also on the ground that it is not a proper conclusion to come to on the facts. 1n other words, the jurisdiction in such cases is in the nature of a regular appeal in the correctness of the finding. And as a contested assessment‑and it is only such that will come up before the Tribunal under section 33 of the Act, must involve disputed questions of fact, the determina tion of which must ultimately depend on findings on various preliminary or evidentiary facts, it must result that practically all orders of assessment of the Tribunal could be brought up for review before Courts. That will in effect, be to wipe out the distinction between questions of law and questions of fact and to defeat the policy underlying sections 66 (1) and 66 (2). One should hesitate to accept a contention which leads to consequences so startling, unless there are compelling reasons therefore. Far from that being the case, both principles and authority are clearly adverse to it. Considering the question on principle, when there is a question of fact to be determined it would usually be necessary first to decide disputed facts of a subsidiary or evidentiary character, and the ultimate conclusion will depend on an appreciation of these facts. Can it be said that a conclusion of fact, pure and simple, ceases to be that when it is in turn a deduction from other facts? What can be the principle on which a question of fact becomes transformed into a question of law when it involves an inference from basic fact 1 To take an illustration, let us suppose that on a suit on a promissory note the defence taken is one of denial of execution. The Court finds that the disputed signature is unlike the admitted signatures of the defendant. It also finds that the attesting witnesses who speak to execution were not, in fact, present at the time of the alleged execution. On a consideration of these facts, the Court comes the conclusion that the promissory note is not genuine. Here, there are certain facts which are ascertained, and on these facts, a certain conclusion is reached which is also one of fact. Can it be contended that the finding that the promissory note is not genuine is one of law, as it is an inference from the primary facts? Clearly not But it is argued against this conclusion that it conflicts with the view expressed in several English decisions, some of them of the highest authority, that it is a question of law what inference is to be drawn from facts. The fallacy underlying this contention is that it fails to take into account the distinction which exists between a pure question of fact that a mixed question of law and fact, and that the observations relied on have reference to the latter and not to the former, which is what we are concerned with in this case. In between the domains occupied respectively by questions of fact and of law, there is a large area in which both these questions run into each other, forming so to say, enclaves within each other. The questions that arise for determination in that area are known as mixed questions of law and fact. These questions involve first the ascertain ment of facts on the evidence adduced and then a determi nation of the rights of the parties on an application of the appropriate principles of law to the facts ascertained. To take an example, the question is whether the defendant has acquired title to the suit property by adverse possession. It is found on the facts that the land is a `vacant site, that the defendant is the owner of the adjacent residential house and that he has been drying grains and cloth and throwing rubbish on the plot. The further question that has to be determined is whether the above facts are sufficient to constitute adverse possession in law. Is the user conti nuous or fugitive? Is it as of right or permissive in character? Thus, for deciding whether the defendant has acquired title by adverse possession, the Court has firstly to find on an appreciation of the evidence what the facts are. So far, it is a question of fact. It has then to apply the principles of law regarding acquisition of title by adverse