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Apparently, Dr. Singhvi means, by his plea against the use of a "per se rule", nothing more than an assumption, that a restriction is illegal in itself, should not be made without examining its impact upon the particular trade involved. Ratio |
As contrasted with any such assumption what the learned counsel describes as "the rule of reason" was stated in the earlier passage quoted above giving the nature of facts to be considered so aS to determine the context in which the restraint was imposed. Ratio |
This Court accepted the correctness, in the Telco case (supra), of the approach that no bald or simple test, divorced from the context or sur rounding circumstances, should be adopted in judging the legality of a restraint upon trade. Ratio |
Such a view, applicable to actual restrictions imposed, has really nothing to do with the rules relating to interpretation of documents which are used in finding out the effect and intent of words used in a document. Ratio |
It is after a difficulty of interpretation, if any, is resolved and a rule or a clause in an agreement is found to have either a clear meaning or to be ambiguous that its effect can be considered. Ratio |
No doubt that effect has to be examined to determine how a restraint actually imposed affects trade. Ratio |
It is one thing to say that the impact of the restraint imposed on trade should be considered with refer ence to the nature of the trade or business to be regulated. Ratio |
It is quite another to say that the effect cannot be gauged, sometimes, even by a bare examination of the meaning of a clause giving power to impose restraints apart from other evidence of what its actual effects are or may be. Ratio |
In some cases, the effect itself is given primarily by the clear meaning of the language used in the clause which is alleged to infringe the law We do not think that any "per se rule", if we may use this somewhat quaint expression is adopted whenever a Court determines the meaning and effects of the words of a rule or ... |
All that the Court does in such a case is simply to interpret the clause, the effect of which may become obvious on a bare determina tion of the meaning or may be seen from other evidence too. Ratio |
Where that effect is not obvious, as we have already indi cated, evidence may be led to show how the language used is actually applied to the facts to which it was meant to apply. Ratio |
That is also a recognised rule of interpretation. Ratio |
It is the function Of Courts to indicate and explain the vary ing facts and circumstances to which different rules of interpretation may apply. Ratio |
Where meaning and intent of lan guage used is given by the words used nothing more is needed. Ratio |
469 Furthermore, the Commission held that, taking into account the nature of goods or the business to be regulated by the agreement under consideration, the clauses, as they stood, were not permissible. Ratio |
It had applied the rule of reason in arriving at the conclusion that, upon the facts of a business in commonly used consumer goods of several varie ties, Which are not shown to be scarce, clauses under con sideration having the obvious meaning and effect which their language carried with them, are unreasonable and ille... |
We are unable to see how any law laid down in American deci sions, dealing with Anti trust laws, or in English cases, dealing with agreements in restraint of trade, lay down rules of reason at variance with the ones we are applying here. Ratio |
The rules of reason applicable to a case like the one before us may be simply stated as follows: Firstly, the meaning of the impugned clause or clauses in an agreement said to offend the law must be determined according to law; secondly, the possible effects of such a clause upon compe tition in the trade to be regulat... |
We think that the Commission had rightly applied these rules and found the clauses to be capable of misuse. Ratio |
We think that this was enough to vitiate the impugned clauses. Ratio |
We would like to make it clear that we are really con cerned only with the law as we find it in our own statute and can only examine evidence in the light of our own law of evidence. Ratio |
We think that the confusion which may be created by using terms such as "per se" rule which could perhaps be more usefully applied to indicate doctrines or to de scribe practices developed under very different sets of circumstances in other countries with statutory provisions couched in language which differs from that... |
Secondly, it was submitted that we should look at evi dence of what takes place in the trade under consideration rather than clauses 5 and 9 of the agreement we have consid ered. ARG |
We have already indicated the correct procedure in 'such cases as the one before us. Ratio |
Indeed, we think that a consideration of extraneous evidence is not required at all when the practice complained of is the introduction of clauses conferring wide powers which may be used to impose restrictions contrary to the Act. Ratio |
In such a case, the introduction of clauses constitutes the restrictive prac tice. Ratio |
Hence, their interpretation is all that we are really concerned with here in accordance with our law. Ratio |
Evidence of what is actually practised could only be relevant 1or pur poses other than a determination of the meaning and the effect which follows logically or reasonably from such determination. Ratio |
Thirdly, it was submitted that, in holding clause 9 to be invalid, the purpose of "equitable distribution", which imposes a limit on the powers of the company, was overlooked by the Commission. ARG |
For the reasons already given, we do not think that this supposed limitation reasonably restricts the company 's power to decide what to distribute. Ratio |
The company is left entirely to itself to decide what is "equitable distri bution". Ratio |
An interpretation of a document, according to well established rules, cannot be dispensed with by labelling it as an application of a "per se" doctrine. Ratio |
We think that the clause, as it stands, 470 confers too wide a power and has to be struck down wholly as unreasonable on that ground. Ratio |
Fourthly, our attention was sought to be drawn to the absence of evidence of distortion of competition and the presence of evidence that competition prevails in the market despite these clauses. ARG |
We have already held such oral evidence to to really unnecessary for judging the possible effects of the clauses. Ratio |
The probability of the effect is only part of the rule of reason to be applied where extrane ous evidence is admissible. Ratio |
In the instant case we are only, as already indicated above, concerned with a reasonable and natural interpretation of the clauses of the agreement and their reasonably possible effects. Ratio |
Fifthly, it was submitted that there was clear evidence of public benefit from an equitable distribution in actual practice so that the requirements of a "gateway" under section 38 were satisfied. ARG |
We cannot assume public benefit from a mere declaration of intention to exercise a power so as to bene fit the public. Ratio |
We are not satisfied, on the evidence actually adduced and placed before us, that this power was necessary so as to benefit the public. Ratio |
Furtherfore, we cannot reassess evidence. Ratio |
Actual benefit to the public is a question of fact on which find ings cannot be reopened unless some error of law is revealed. Ratio |
No error of law in assessing evidence is disclosed. Ratio |
This is an additional reason for not disturbing the findings of fact recorded by the Commission. Ratio |
Sixthly, it was submitted that the Commission had ignored the last sentence of clause 9 in interpreting it. ARG |
We have, however, considered it and find that, far from making clause 9 more acceptable and reasonable, the last part of it makes it more objectionable and unreasonable inasmuch as it enhances the powers of the Company. Ratio |
Learned counsel for the appellant company has pointed out that the order of the Commission was to come into force from 1 July 1976, ' so that the appellant company had nearly four months to rewrite the agreements which are over four thousands in number. ARG |
He prays for extension of time for six months from today for executing fresh agreements. ARG |
It is not really necessary for us to fix any particular time within which the company will print or get new agreements executed on freshly printed forms in accordance with law. Ratio |
That is a matter for parties themselves to each agreement to decide and work out. ' All that we need make clear is that all agreements which are operative and binding between parties will be so interpreted now as if clause 9 was not there at all and clause 5 was there only in the ,modified form which omits the last sen... |
However, if the company wants, to complete any for malities for bringing each individual agreement into line with the law as declared by this Court it may do .so; and, it will file, within six months from today an affidavit showing that it has done this. Ratio |
The requirement to file 471 such an affidavit showing compliance will ensure that the company has taken due steps to inform each stockist of the correct legal position. Ratio |
The time given for doing this wilt not, however, authorise it to act under those parts of the agreement which this Court has declared to be illegal. Ratio |
Subject to the observations made above we uphold the Commissions order and dismiss this appeal with costs. RPC |
P.B.R. Appeal dismissed. RPC |
Parties will hear their own costs, V.P.S. Appeals dismissed. RPC |
Appeal by special leave from the judgment and order dated the 3rd November, 1953 of the High Court of Judicature at Nagpur in Criminal Appeal 1144 No. 220 of 1953 arising out of the judgment and order dated the 21st July 1953 of the Court of Sessions Judge at Jabalpur in Sessions Trial No. 32 of 1953. FAC |
H.J. Umrigar and Rajinder Narain, for the appellant. FAC |
The courts below were wrong in convicting the appellant of murder under section 302 of the Indian Penal Code in the absence of a charge framed for the offence. Ratio |
The charge framed against the appellant was different and he was never charged individually of having committed murder. FAC |
When the other person was acquitted the charge of an offence under section 302 read with section 34 of the Indian Penal Code falls and the appellant is bound to be acquitted. FAC |
It is a fundamental principle of criminal law as administered in India that there should be a separate charge for every distinct offence as the accused person must have notice of the charge which he has to meet. Ratio |
The only exceptions are contained in sections 236, 237 and 238 of the Code of Criminal Procedure. Ratio |
The offence of murder under section 302 of the Indian Penal Code being separate, distinct and different from an offence under section 302 read with 34 or an offence under section 302 read with 149 which creates a distinct head of criminal liability known as constructive liability a conviction under section 302 simplici... |
Where a person has been convicted of an offence with which he has not been charged (unless allowed by exceptions) the prejudice is inherent in the absence of the charge itself and it is unnecessary to look any further. Ratio |
Where there is an illegality in the mode of trial as contemplated in sections 233 to 239 it is an illegality, which is not cured by the provisions of sections 535 and 537. Ratio |
There is no difference in principle between a charge under section 302 read with 34 and a charge under section 302 read with 149 [See: Nanak Chand vs State of Punjab ([1955] 1 S.C.R.1201), Suraj Pal vs State of U. P. ; It is incorrect to say that the decision of the Privy Council in Subramania Iyer 's case as to what i... |
Section 535 appears in Chapter XLV of the Code and is headed "Of irregular proceedings" and cannot possibly apply to breaches of the mandatory provisions of sections 233 to 239 of the Code; it may relate to those cases where it is optional to frame a charge. STA |
See sections 263, 362(4). STA |
Assuming that actual prejudice is necessary, then as the only charge against the appellant being one under section 302 read with section 34, and that having failed due to the acquittal of the co accused, and the appellant having successfully shown that there was no "common intention" as contemplated by section 34 of th... |
In any event, the 1146 offence committed in the case, even though the blow was struck on the head, could never be murder, as even the medical evidence showed that the bead injury "was likely" to result in fatal consequences. Ratio |
The offence committed would either be one of grievous hurt under section 325, or alternatively, it is covered by exception 4 to section 300, and punishable under the second part of section 304. Ratio |
B.Sen and I. N. Shroff, for the respondent. Ratio |
The word 'illegality ' which is frequently used in the judgments is nowhere defined in the Code of Criminal. Ratio |
Procedure. Ratio |
This word had been used by the judges to convey that the trial has been irregular and the irregularity is not curable under the provisions of the Code. Ratio |
The word has been used in three senses, namely: (a) In cases where the trial and conviction are ab initio void due to some inherent defect, which goes to the root and is by itself enough to vitiate the trial, as in cases of lack of jurisdiction, e.g., where section 197 of the Code has not been complied with; (b) In cas... |
Proceeding on the basis that an offence under section 302 read with section 149 is a distinct and separate offence from an offence under section 302, the question is whether in the absence of actual prejudice the conviction of a person of the latter offence, when he is only charged with the former, is illegal. Ratio |
The answer depends on the determination as to whether the failure to frame a charge is such a disregard of the mandatory Provisions of the Code so as to lead to the conclusion that prejudice must have been caused. Ratio |
In N. A. Subramania Iyer vs King Emperor ([1901] 28 I.A. 257) the decision was based on the facts of the case in which actual prejudice was caused. Ratio |
In any event, that decision stands modified by the 1141 decisions of the Privy Council in the later cases: [See, Abdul Rahman vs The King Emperor ([1926] 54 I.A. 96) and Pulukuri Kotayya and Others vs King Emperor ([1946] 74 I.A. 65). Ratio |
It is clear from those decisions that every breach of a mandatory provision is not such as would ipso facto vitiate a trial. Ratio |
If one looks at the relevant sections, the object behind the enactment of those provisions and the intention of the legislature, it is clear that the framing of a charge though mandatory is not of a vital nature. Ratio |
See sections 210, 254,271, 221, 222, 223, 225, 226, 227, 232 and 535. Ratio |
All that the Code contemplates is that an accused person must in fact receive notice of what be is being tried for. Ratio |
When a person is charged with an offence under section 302 read with section 149 of the Indian Penal Code there is no objection to his being convicted under section 302 without a charge being framed, if it appears from the evidence that he has committed the actual murder and it appears from the record that either by th... |
8 C.R. 904) and Lachman Singh and Others vs The State ([1952] S.C.R. 839)]. Ratio |
A case of this nature may even be covered by the provisions of section 237 of the Code of Criminal Procedure. Ratio |
The cases of Nanak Chand vs State of Punjab ([1955] 1 S.C.R. 1201) and Suraj Pal vs State of U.P. ([1955] 1 S.C.R. 1332), do not lay down the proposition that even in the absence of prejudice conviction of a person under section 302 who is charged with an offence under section 302 read with section 149, would be ipso f... |
Whatever view the Court takes in respect of a conviction under section 302 when a person is charged with section 302 read with section 149, it is quite clear that a person can be validly convicted of murder when he is charged with section 302 read with section 34. Ratio |
Section 34 does not create a specific offence and a person who is charged under section 302 read with section 34 is really being charged for his act in the murder itself. Ratio |
It is therefore not necessary to frame a separate charge under section 302. Ratio |
The Privy Council as well as the High 1148 Courts in India have always taken this view. Ratio |
See ' The King Emperor vs Barendra Kumar Ghose (A.I.R. , Emperor vs Destrali ([1930] , Debiprasad Kalowar vs Emperor ([1932] , Devki Nandan and Others vs Emperor (A.I.R. 1941 Lah. 423) and Bhondu Das vs King Emperor ([1928] 7 Patna 758). Ratio |
In this case there was no actual prejudice as the accused knew that he was being charged with murder which is clear from the trend of cross examinations of witnesses and his examination under section 342 of the Code of Criminal Procedure. Ratio |
The facts clearly show that the offence committed by the accused is one of murder as the deceased died as a result of injuries and the injury was sufficient to cause death according to the doctor 's evidence. Ratio |
Umrigar in reply. Ratio |
If section 535 is given its literal meaning it would mean that a trial for any offence could be held and terminated without the framing of any charge whatsoever. Ratio |
It would also mean that a person could be charged with a minor offence and convicted of a major offence, whereas section 238(2) only allows conviction of a minor offence without a charge, if the major offence with which the person is charged is not made out. Ratio |
Such a wide meaning which would lead to absurdities should not be given to section 535. Ratio |
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