text stringlengths 5 5.67k |
|---|
Section 233 is a mandatory provision and the force of its direction is not weakened by the fact that another provision of the Code does permit a conviction of an accused for an offence with which he had not been charged. Ratio |
In such a case no question of illegality or irregularity arises, as the conviction is expressly authorized by the Code. Ratio |
The conviction is valid because of the statute itself and not because of section 535. Ratio |
On the charge framed, after it has been explained to the accused, the plea of guilty or not guilty is recorded. Ratio |
If the accused pleads guilty, certain consequences follow. Ratio |
If he pleads not guilty, the trial must proceed according to law. Ratio |
Is the framing of a charge and the recording of the plea of the accused merely a ritual or a fundamental provision of the Code concerning procedure 1194 in a criminal trial? I think it is the latter. Ratio |
Are the express provisions of the Code as to the manner in which a trial is to proceed to be ignored, or considered as satisfied, merely because the Court explained to the accused as to what he was being tried for? Ratio |
I a prehend not. Ratio |
For to do so is to replace the provisions of the Code by a procedure unwarranted by the statute itself. Ratio |
In my opinion, a total absence of a charge from start to finish in a case where the law requires a charge to be framed, is a contravention of the provisions of the Code as to the mode of trial and a conviction of the accused of an offence in such a case is invalid and the question of prejudice does Dot arise. Ratio |
None of the decisions of the Privy Council suggest that in such a case the conviction will be deemed to be valid by virtue of the provisions of section 535, unless the Court is satisfied that there has been a failure of justice. Ratio |
In any event, the Code expressly provides that in such cases the conviction need not be set aside, unless, in fact, a failure of justice has resulted. Ratio |
Under the provisions of section 232 of the Code an appellate Court or a High Court exercising its powers of revision or its powers under Chapter XXVII, must direct a new trial of a case in which an accused person has been convicted of an offence with which he had not been charged, if it is satisfied that he had been mi... |
In such a case a court is bound to act according to its provisions. Ratio |
It is the provision of section 535 to which reference must be made in order to ascertain whether that which was invalid shall be deemed to be valid, unless the court was satisfied that there had been a failure of justice. Ratio |
I regard with concern, if not with dismay, a too liberal application of its provisions to all cases in which there is an absence of a charge, 1195 although a charge ought to have been framed. Ratio |
It is difficult to lay down any hard and fast rule as to when the provisions of section 535 will or will not be applicable. Ratio |
The facts of each case, as they arise, will have to be carefully considered in order to decide that that which was prima facie invalid is deemed to be valid by virtue of its provisions. Ratio |
There may be cases where the omission to frame a charge was merely a technical defect in which case section 535 would apply. Ratio |
On the other band, there may be cases where failure to frame a charge affects the mode of trial or it is such a substantial contravention of the provisions of the Code relating to the framing of charges that prejudice may be inferred at once and the conviction which was prima facie invalid continued to be so. Ratio |
In a criminal trial innocence of an accused is presumed,unless there is a statutory presumption against him, and the prosecution must prove that the accused is guilty of the offence for which he is being tried. Ratio |
The prosecution is in possession of all the evidence upon which it relies to establish its case against the accused. Ratio |
It has the privilege to ask the Court to frame charges with respect to the offences which it wishes to establish against the accused. Ratio |
On the Court itself a duty is cast to frame charges for offences which, on the evidence, appear to it prima facie to have been committed. Ratio |
If in spite of this a charge under section 302 read with 149 of the Indian Penal Code only is framed against an accused person and not under section 302 of the Indian Penal Code, it will be reasonable to suppose that neither the prosecu tion nor the Court considered the evidence sufficient to prove that murder was comm... |
It would not be a case of mere omission to frame a charge. Ratio |
If, therefore, the accused is convicted under section 302, I would consider his conviction as invalid, as he was misled in his defence. Ratio |
In conclusion I would point out that the provisions of the Code of Criminal Procedure are meant to be 151 1196 obeyed. Ratio |
Contravention of its provisions are unnecessary and neither the prosecution nor the Courts of trial should ignore its provisions in the hope that they might find shelter under sections 535 and 537 of the Code. Ratio |
Where the contravention is substantial and a retrial becomes necessary, public time is wasted and the accused is put to unnecessary harassment and expense. Ratio |
il Appeal No. 724 of 1976. FAC |
Appeal by Special Leave from the, Judgment and Order dated 13th Dec. 1974 of the Calcutta High Court in Appeal from Original Order No. 240 of 1973. FAC |
AND Civil Appeals. FAC |
2488 2497 (NT) 1972 (From the Judgment and Order dated the 31st March, 1970 of the Andhra Pradesh High Court in Writ Petitions Nos.3005, 3006, 3085, 3086, 3088, 3090, 4232, 4243 and 4244 of 1969. FAC |
Sachin Chowdhary, B. Sen, section section Bose, K. K. Chakraborty, A. G. Manzes, J. B. Dadachanji and k. J. John for the Appellant in C.A. 724/76. FAC |
L. N. Sinha, D. N. Mukherjee, G. section Chatterjee and A. K. Ganguli for respondents 1 to 4 in C.A. 724/76. FAC |
B. Kanta Rao for the Appellants in C.As 2488 97 of 1972. FAC |
Soli J. Sorabjee, Addl.(In 2488 97) 72, P. Parameshwara Rao A. K. Ganguli and T. V. section Narasimhachari for the Respondents in CAs.2488 97/72. FAC |
A. Subba Rao for the Intervener. FAC |
The following Judgment were delivered BEG, C.J. FAC |
I am in general agreement with my learned brother Chandrachud who has discussed all the authorities so admirably and comprehensively. Ratio |
I, however, would like to add a few observations stating the general conclusion, as I see it, emerging from an application of general principles and accumulation of case law on the subject of what may be called "statutory" or "compulsory" sales. Ratio |
Are they sales at all so as to be exigible to sales tax or purchase tax under the relevant statutory provisions ? Ratio |
The term 'sale? is defined as follows in Eenjamin on Sale (Eighth Edn.) : "To constitute a valid sale there must be a concurrences of the following elements, namely : (1) parties competent to contract; (2) mutual assent; (3) a thing, the absolute or general property in which is transferred from the seller to the buyer;... |
" It is true that a considerable part of the field over which what are called 'sales ' take place under either 'regulatory orders or levy orders passed or directions given under statutory provisions is restricted and controlled by these orders and directions. Ratio |
If, what is called a "sale" 438 is, in substance, mere obedience to a specific order, in which the so called "price" is only a compensation for the compulsory passing of property in goods to which an order relates, at an amount fixed by the authority making the order, the individual transaction may not be a ,,sale" alt... |
This was, for example, the position in New India Sugar Mills vs Commissioner of Sales Tax, Bihar(1). Ratio |
That was a case of a delivery according to an order given by the Govt. which could amount to a compulsory levy by an executive order although there was no legislative "levy order" involved in that case. Ratio |
On the other hand,, in Commissioner, Sales Tax, U.P. vs Ram Bilas Ram Gopal,(2) the order under consideration was actually called a levy order, but the case was distinguishable from New India Sugar Mills vs Commissioner of Sales Tax, Bihar (supra) on facts. PRE |
It was held in the case of Ram Bilas (supra) that the core of what is required for a "sale" was not destroyed by the so called "levy" order which was legislative. PRE |
It is true that passages from the judgement of Pathak, J., in the case of Ram Bilas Ram Gopal (supra) were cited and specifically disapproved by a Bench of this Court in Chittar Mal Narain vs Commissioner of Sales Tax(3). Ratio |
But, perhaps the view of this Court in Chittar Mal Narain, Das (supra) goes too far in this respect. Ratio |
It is not really the nomenclature of the order involved, but the substance of the transaction under consideration which matters in such cases. Ratio |
In the first typo of case mentioned above the substance of the concept of a sale, as found under our Law, itself disappears because the transaction is nothing more than the execution of an order. Ratio |
Deprivation of property for a compensation, which may even be described as "price", does not amount to, a sale when all that is done is to, carry out an order so that the transaction is substantially a compulsory acquisition. Ratio |
On the other hand, a merely regulatory law, even if it circumscribes the area of free choice, does not take away the basic character or core of sale from the transaction. Ratio |
Such a law, which governs a class, may oblige sellers to deal only with parties holding licences who may buy particular or allotted quantities of goods at specified prices, but an essential element of choice is still left to the parties between whom agreements take place. Ratio |
The agreement, despite considerable compulsive elements regulating or restricting the area of free choice, may still retain the basic character of a transaction of sale. PRE |
This was the position in Indian Steel and Wire Products Ltd. vs State of Madras(4).Andhra Sugar Ltd. vs State of Andhra Pradesh(5) and State of Rajasthan vs Karam Chand Thapar(6): There might be borderline cases in which it may be difficult to draw the line. Ratio |
(1) ; : [1963] (Supp) 2 SCR 459. PRE |
(2) AIR 1970 All 518. PRE |
(3) [1971] 1 S.C.R. 671. PRE |
(4) ; (5) ; (6) A.I.R. 1969 S.C. 343. PRE |
439 In the former type of case, the binding character of the, transaction arises from the order directed to particular parties asking them to deliver specified goods and not from a general order or law applicable to a class. Ratio |
In the latter type of cases, the legal tie (vinculum juris) which binds the parties to perform their obligations remains contractual. Ratio |
The regulatory law merely adds other obligations, such as the one to enter into such a tie between the parties indicated there. Ratio |
Although the regulatory law might specify the terms, such as price, or parties, the regulation is subsidiary to the essential character of the transaction which is consensual and contractual. Ratio |
The basis of a contract is : "consensus adem". Ratio |
The parties to the contract must agree upon the same thing in the 'same sense. Ratio |
Agreement on mutuality of consideration, ordinarily arising from an offer and acceptance, imparts to it enforceability in Courts of law. Ratio |
Mere regulation or restriction of the field of choice does not take away the contractual or essentially consensual binding core or character of the transaction. Ratio |
I may be forgiven for citing a passage from my judgment in Commissioner of State Tax vs Ram Bilas Ram Gopal,(supra) to indicate the setting of such transactions "It appears to me to be necessary to distinguish between a restriction in the area of choice of parties and the transaction itself in order to, determine the t... |
Limitation of the field of choice is a necessary concomitant of a controlled or mixed economy which ours is. Ratio |
Absolute freedom of contract or unregulated operation of the laws of supply and demand, which an apotheosis of the lais sez faire doctrine demanded, led really to a shrinking of the area of freedom in the economic sphere, producing gross inequalities in bargaining powers and recurrent crises. Ratio |
Therefore, a regulated or a socialistic economy seeks to regulate the play of forces operating on the economic arena so that economic freedom of all concerned, including employers and employees, is preserved and so that the interests of consumers are also not sacrificed by any exploitation of conditions in which there ... |
I think that the regulation or restriction of the area of choice, cannot be held to take away the legal character of the transactions which take place within the legally restricted field. Ratio |
It is too late in the day, when so much of the nation 's social and economic activities are guided and governed by control orders, allotment orders, and statutory contracts, to contend that mere State regulation of the economic sphere of life results in the destruction of the nature of the transactions which take place... |
The consent could, no doubt, be express or implied. Ratio |
I find that Hidayatullah J., in his very learned dissenting judgment in New India Sugar Mills Case (supra), where some Roman Law is referred to, thought that even in a case of a 'specific order directing delivery of 440 goods there could be an implied consent so as to constitute a safe. Ratio |
I find it, with great respect, difficult to go so far as that. Ratio |
What could be implied, upon the facts of a particular case, must still be a consent to a proposal if the transaction is to be construed as a "sale". Ratio |
Mere compliance with an order may imply an acceptance of an order but acceptance of a proposal to purchase or sell are of a juristically different genus. Ratio |
It is, however, not necessary for us, in this case, to accept the correctness of the minority view of Hidayatullah, J. in New India Sugar Mills case (supra). Ratio |
The transactions before us are sales on an application of the ratio decidendi of Indian Steel and Wire Products Ltd 's case (supra) and other cases decided on similar grounds. Ratio |
The difficulty arises from the fact that, although the ingredients of a "sale," as defined in Benjamin 's treatise on "Sale? ', may seem to be satisfied even if delivery of goods is in obedience to "an order to deliver them for a consideration, fixed or to be fixed if we stretch mutual assent to cover assent resulting ... |
According to Sec.4(3) of our , a sale results only from a contract which presupposes a minimal area of freedom of choice where the ordinary mechanism of proposal and acceptance operates. Ratio |
For the reasons indicated above, while I agree with the answer given by my learned brother Chandrachud to the question before us and also practically with all the views expressed by my learned brother, yet, I hesitate to hold that the majority opinion expressed by Shah J., in New India Sugar Mills case (supra), is erro... |
I think the case is distinguishable. Ratio |
Ibis, however, makes no difference to the common conclusion reached by us on the facts of the cases before us. Ratio |
These appeals have been placed for hearing before a seven Judge Bench in order to set at rest, to the extent foreseeable, the controversy whether what is conveniently, though somewhat loosely, called a 'compulsory sale? is exigible to sales tax. Ratio |
When essential goods are in short supply, various types of Orders are issued under the with a view to making the goods available to the consumer at a fair price. Ratio |
Such Orders sometimes provide that a person in need of an essential commodity like cement, cotton, coal or iron and steel must apply to the prescribed authority for a permit for obtaining the commodity. Ratio |
Those wanting to engage in the business of supplying the commodity are also required to possess a dealer 's licence. Ratio |
The permit holder can obtain the supply of goods, to the extent of the quantity specified in the permit, from the named dealer only and at a controlled price. Ratio |
The dealer who is asked to supply the stated quantity of goods at the particular permit holder has no option but to supply the stated quantity of goods at the controlled price. Ratio |
The question for our consideration not easy to decide, is whether such a transaction amounts to a sale in the language of the law. Ratio |
We will refer to the facts of civil appeal 724 of 1976, in which a company called M/s Vishnu Agencies (Pvt.) Ltd., is the appellant. PRE |
It carries on business as an agent and distributor of cement in the 441 State of West Bengal and is a registered dealer under the Bengal Finance (Sales Tax) Act, 1941, referred to hereinafter as the Bengal Sales Tax Act. Ratio |
Cement being a controlled commodity, its distribution is regulated by the West Bengal Cement Control Act, 26 of 1948, referred to hereinafter as the Cement Control Act, and by the Orders made under section 3 (2) of that Act. Ratio |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.