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In view of this fact, it is quite clear that freedom of contract is now largely an illusion." (Anson 's Law of Contract, 23rd Ed. pages 3 4). Ratio |
Anson is perhaps over optimistic in saying that there has been a fundamental change in social outlook and in the legislative policy towards contract. Ratio |
Anyway, with the high ideals of the Preamble and the directive principles of our Constitution there has to be such a fundamental change, in judicial outlook. Ratio |
Instances given in Cheshire and Anson have their parallels in India too, wherein freedom of contract has largely become an illusion. Ratio |
The policy of our Parliament in regard to contracts, including those involved in sale of goods, has still to reflect recognition of the necessity for a change, which could be done by a suitable modification of the definition of 'sale of goods. Ratio |
It all began with the reliance in Gannon Dunkerley (supra) (pages 396 398) on the statement in the 8th Edition (1950) of Benjamin on Sale that to constitute a valid tale there must be a concurrence of four elements, one of which is "mutual assent". Ratio |
That statement is a reproduction of what the celebrated author had said in the 2nd and last edition prepared by himself in 1873. Ratio |
The majority judgment in New India Sugar Mills (supra) (page 467) also derives, sustenance from the same passage in Benjamin 's 8th edition. Ratio |
But as observed by Hidayatullah J. in his dissenting judgment in that case, consent may be express or implied and offer and acceptance need not be in an elementary form (page 510). Ratio |
It is interesting that the General Editor of the 1974 edition of 'Benjarnin 's Sale of Goods" says in the preface that the editors decided to produce an entirely new work partly because commercial institutions, modes of transport and of payment, forms of contract, types, of goods, market areas and marketing methods, an... |
The formulations in Benjamin 's 2nd edition, relating to the conditions of a valid 'sale ' of goods, which are reproduced in the 8th edition evidently require modi fication in the light of regulatory measures of social control. Ratio |
Hidayatullah J., in his minority judgment referred to above struck the new path; and Bachawat J.Who spoke for the Court in Andhra Sugars (supra) went a step ahead by declaring that "the contract is a contract of sales and purchase of cane, though the buyer is obliged to give his assent under compulsion of a statute". R... |
The concept of freedom of contract, as observed by Hedge J. in Indian Steel and 4 6 5 Wire Products, (supra) has undergone a great deal of change even in those countries where it was considered as one of the basic economic requirements of a democratic life. Ratio |
Thus, in Ridge Nominees Ltd., (supra) the Court of Appeal, while rejecting the argument that there was no sale because the essential element of mutual assent was lacking, held that the dissent of the shareholder was overridden by an assent which the statute imposed on him, fictional though it may be, that a sale may no... |
(pages 405 406). PRE |
Decisions in case of 'compulsory acquisition, where such acquisition is patent as in Kirkness (supra) or is inferred as in Chitter Mal (supra) fall in a separate and distinct class. Ratio |
The observations of Lord Reid in Kirkness (supra) that 'sale ' is a women juris the name of a particular consensual contract have therefore to be under stood in the context in which they were made, namely, that compulsory acquisition cannot amount to sale. Ratio |
In Gannon Dunkerley, (supra) Venkatarama Aiyar J. was influenced largely by these observations (see pages 411, 412 and 425) and by the definition of 'sale ' in Benjamin 's 8th edition ' Gannon Dunkerley _(supra) involved an altogether different point and is not an authority for the proposition that there cannot at all ... |
Since we are putting in a nutshell what we have discussed earlier, we would like to reiterate in the interest of uniformity and certainty of law that, with great deference the majority decision in New India Sugar Mills (supra) is not good law. Ratio |
The true legal position is as is stated in the minority judgment in that case and in Indian Steel and Wire Products, (supra) Andhra Sugars, (supra) Salar Jung Sugar Mills (supra) and Oil and Natural Gas Commission. Ratio |
To the extent to which Cement Distributors Pvt.Ltd. (supra) is inconsistent with these judgments, it is also, with respect, not good law. Ratio |
The conclusion which therefore emerges is that the transactions between the appellant, M/s. Vishnu Agencies (Pvt.) Ltd., and the allottees are sales within the meaning of section 2(g) of the Bengal Finance (Sales Tax) Act, 1941. Ratio |
For the same reasons, transactions between the growers and procuring agents as also those between the rice millers on one hand and the wholesalers or retailers on the other are sales within the meaning of section 2(n) of the Andhra Pradesh General Sales Tax Act, 1957. Ratio |
The turnover is accordingly 'exigible to sale tax or purchase tax as the case may be. Ratio |
The appeals are accordingly dismissed with costs, with one hearing fee. RPC |
P.B.R. Appeals dismissed. RPC |
minal Appeals Nos. FAC |
241 242 of 1972. FAC |
(Appeals by Special Leave from the Judgment and Order dated 1 8 1972 of. FAC |
the Allahabad High Court in Criminal Appeal Nos.488 and 2561 of 1969). FAC |
R. K. Garg, section C. Agarwala and A. P. Gupta for the appellants. FAC |
O. P. Rana for the Respondent. FAC |
D. Mookerjee and R. K. Bhatt for the Intervener. FAC |
The Judgment of the Court was delivered by FAZAL ALI, J. FAC |
These two criminal appeals by special leave are directed against a common judgment dated 1st August, 1972 of the Allahabad High Court upholding the conviction and sentences imposed by the Sessions Judge, Bareilly on the appellants. FAC |
In Criminal Appeal No. 241 of 1972 there are seven appellants, viz., Rameshwar Dayal, Acchmal, Janmeje, Rohan, Raghunandan, Ramdas and Sudama. FAC |
In Criminal Appeal No. 242 of 1972 there are two appellants, viz., Rohtas and Sukhdev. FAC |
All the appellants were convicted under section 302/149, I.P.C. and sentenced to imprisonment for life. FAC |
Rameshwar Dayal, Achhmal Ram, Janmejaya 61 Deo, Rohtas, Sudama, Ramdas, Raghunandan and Rohan were further convicted under section 324 read with section 149 I.P.C. and sentenced to one year 's rigorous imprisonment. FAC |
Sukhdev was also convicted under section 324 whereas Rameshwar Dayal and Janmejaya Deo were convicted under section 394 I.P.C. and sentenced to four years ' rigorous imprisonment. FAC |
Rameshwar Dayal, Achhmal Ram, Janmejaya Deo, Rohtas, Sukhdeo and Sudama were further convicted under sec tion 148 I.P.C. and sentenced to 18 months ' rigorous imprisonment whereas Ramdas, Raghunandan and Rohan were convicted under section 147, I.P.C. and sentenced to one year 's rigorous imprisonment. FAC |
The High Court, on appeal, affirmed the conviction and sentences indicated above. FAC |
The unfortunate occurrence which resulted in the death of the deceased is an outcome of an outstanding enmity between the two parties. FAC |
Both the High Court and the Sessions Judge have clearly spelt out the essential features of the prosecution case and it is not necessary for us to repeat the same with all its details. Ratio |
It appears that apart from the long outstanding enmity between the parties the immediate provocation for the occurrence was that proceedings under section 107/117 Cr.P.C. had been initiated by Babu Ram and Munnalal against each other and were pending in the Court of the Sub Divisional Magistrate, Faridpur. Ratio |
In these proceedings a number of persons figured as parties on both sides. Ratio |
9th December, 1969 was the date fixed for giving evidence in the proceedings under section 107/117 Cr.P.C. which had been initiated against the accused persons on the basis of an application given by the deceased Babu Ram. FAC |
The leader of the faction against whom the proceedings had been started was Munnalal. FAC |
Babu Ram along with his companions left for Faridpur and when he reached near the field of one Laltu Nal, he was surrounded by the appellants who were Iying in wait for him in the bushes and who on seeing the accused add his party emerged and started abusing him right and left. FAC |
Of the accused persons Rameshwar Dayal was armed with a single barrel gun, Achmal Ram with a double barrel gun, Janmejaya Deo with a country made pistol and the others were variously armed with spears, Kantas and lathes. FAC |
Rameshwar Dayal fired his gun at the deceased and Janmejaya fired another shot at the deceased from his pistol simultaneously. FAC |
Babu Ram fell down as a result of the injuries received by him. FAC |
Sukhdeo intercepted Chhoteylal when he wanted to protect his brother and inflicted a spear injury on him. FAC |
Virendra and others who were accompanying the deceased raised an alarm at which Achhmal fired a shot at them which did not hit them. FAC |
Meanwhile, Rameshwar Dayal snatched away a bag from the belt of the deceased containing his licensed revolver and cartridges and Janmejaya Deo picked, up the cloth bag in which the deceased was carrying the papers relating to the proceedings under section 107/117 Cr.P.C. which was fixed on 9th December, 1969, the day o... |
Thereafter, the. appellants made good their escape by running away towards the south. FAC |
A narrative regarding the manner in which the occurrence took place was jotted down by P.W, 1 Rajendra, son of the deceased at the spot and he carried the same to the Police Station 62 Fatehganj, a mile from the scene of the occurrence where the F.I.R. was lodged at 8 a.m. on the basis of which a case was registered ag... |
The police visited the spot and after the usual investigation submitted a charge sheet against the appellants as a result of which they were put on trial by the Sessions Judge and convinced and sentenced by him as indicated above. FAC |
Two facts need special mention which have taken place during the course of investigation. FAC |
In the first place, when the Investigating Officer visited the place of occurrence he found one empty cartridge and four live cartridges at the spot. FAC |
The appellants have challenged the factum of the recovery of four live cartridges at the spot an aspect which has engaged the main attention of counsel for the appellants in this Court as well in the High Court which will be dealt with a little later. FAC |
The prosecution had examined three main eye witnesses in the case, namely, P.W.1 Rajendra, P.W.2 Mungolal Sharma and P.W.3 Chhoteylal. FAC |
The learned Sessions Judge after a very careful appraisal of the evidence and the circumstances of the case came to the clear conclusion that the case was proved against the appellants and he accordingly convicted them. FAC |
It may also be mentioned here that the Sessions Judge found as a fact in his judgment that the cartridges which were found on the spot were live cartridges though by mistake they were recorded as empty cartridges in the evidence of the Investigating Officer Muniraj Singh. FAC |
In this connection, the learned Sessions Judge while dealing with the evidence of the Investigating Officer, P.W.1 I observed as follows "He also found four live cartridges exhibit 2 of 32 bore revolver near the dead body (the word empty instead of live being wrongly written in the statement, as is shown by the memo ex... |
The learned Sessions Judge further observed as follows "Further that four live cartridges said to be belonging to the deceased were found lying at the spot by the I.O. which fact is again not challenged by the defence, the prosecution has succeeded in proving that the incident occurred near the field of Laltu". RLC |
These two statements of fact made by the learned Sessions Judge in his judgment do not appear to have been challenged by the appellants in their grounds of appeal before the High Court. Ratio |
Normally, this Court would not allow the parties to contest any statement of fact mentioned in the judgment unless unerring and cogent evidence is produced to draw a converse conclusion. Ratio |
Neither before the High Court nor before this Court such an evidence has been suggested much less proved in the case. Ratio |
63 It appears that while the appeal was pending in the High Court where the material exhibits were sent for and after the material exhibits were sent for an application was filed by the accused on 25th April, 1972 praying that in view of the fact that on inspection of the material exhibits showed that the cartridges fo... |
It may be noted that this application was made almost three years after the memo of appeal was filed in the High Court. Ratio |
The, fact that live cartridges were found at the spot does not appear to have been controverted either before the Sessions Judge or even at the time when the appeal was filed before the High Court. FAC |
In fact, it would appear that counsel for both the parties argued the case before the Sessions Judge on the footing that the evidence showed that four live cartridges were found at the spot. Ratio |
When the matter was taken up by the High Court, at the hearing the High Court examined two witnesses, viz., Mr. Hira Lal Capoor, the Sessions Judge himself and Muniraj Singh, the Investigating Officer on the question as to whether live or empty cartridges were found at the spot. Ratio |
Indeed, if it was proved that empty cartridges were found at the spot, then having regard to the admitted fact that the deceased was carrying a pistol along with cartridges there may be a possibility of his having himself fired five shots on his assailants and that would naturally change the entire complexion of the ca... |
After the witnesses were examined by the High Court the appellants were reexamined under section 342 Cr.P.C. FAC |
Thereafter, the appellants filed an application on 25th April, 1972 praying that they may be given an opportunity to rebut the evidence of the Court witnesses summoned by the High Court. FAC |
In their application the appellants prayed for the examination of two witnesses, namely Shri section N. Mulla, Bar at Law and Shri 'Bankesh Behari Mathur, Advocate, Bareilly and also call for a docu ment, viz., the Panchayatnama Register of Police Station Fatebganj. FAC |
The High Court, however, refused to accede to the prayer of the appellants on the ground that they had got full opportunity to crossexamine the witness examined by the High Court under section 540, Cr.P.C. FAC |
One of the main points taken by the appellants in their petition for special leave was that the High Court judgment was vitiated by the failure of the High Court to give a reasonable opportunity to the appellants in order to rebut the evidence of the witnesses examined by the High Court under section 540, Cr.P.C. and t... |
We have gone through the judgments of the two courts and have also been taken through the entire evidence. Ratio |
Mr. Garg, learned counsel for the appellants submitted that if the High Court chose to summon the Sessions Judge and the Investigating Officer under Section 540 Cr.P.C. it was incumbent on it to give a reasonable opportunity to the appellants to rebut that evidence and the High Court committed a serious error of law in... |
64 We find ourselves in complete agreement with the principles adumbrated by Mr. Garg and we feel that the High Court ought to have given art opportunity to the appellants to examine the witnesses. Ratio |
It was also argued that the High Court erred in examining the Sessions Judge as a witness which was a most extraordinary course. ARG |
In this connection, reliance was placed on a decision in the case of The Most Noble the Duke of Buccleuch and Queensberry and The Metropolitan Board of Works (1871 2) V English & Irish Appeal Cases 418 where Lord Chelmsford speaking for the Appeal Court observed as follows : "With respect to those who fill the office o... |
We fully agree with the rule of law laid down in the aforesaid ruling. Ratio |
Judges should not be allowed to become witnesses in cases which they decide otherwise that would lead to most anomalous results and would undermine the confidence of the people in the judiciary. Ratio |
A Judge has to decide the case according the evidence and the circumstances before him and it can not be allowed to fill up gaps left by the prosecution or the defence by giving statement on oath before a court of law. Ratio |
If any statement of fact made by the Judge in his judgment is sought, to be, controverted the_ same should be done by the well established method of filing affidavits by counsel and getting a report from the Judge by the High Court. Ratio |
It is true that under section 540 of the Criminal Procedure Code the High Court has got very wide powers to examine any witness it likes for the just decision of the case, but this power has to be exercised sparingly and only when the ends of justice so demand. Ratio |
The higher the power the more careful should be its exercise. Ratio |
In the case of Regina vs Gazard(1) it was held by Patteson, J. that it will be a dangerous precedent to allow a President of the Court of Record to be examined as a witness. FAC |
In this connection, Patteson, J. made the following observations : "It is a new point, but I should advise the grand jury not to examine him. PRE |
He is the present of a Court of Record, and it would be dangerous to allow such an examination, as the Judges of England might be called upon to state what occurred before them in Court". PRE |
Although in the instant case the Sessions Judge was not a Court of Record but the principles laid down by Patteson, J. would equally apply to him. PRE |
We do not mean to suggest for a moment that the High Court (1) ; 65 has no power to examine a Sessions Judge in any case whatsoever for there may be proper and suitable cases where the examination of the Sessions Judge or the trial Court may be very necessary but this must be indeed a very rare occasion where all other... |
In the instant case, we feel that there was no good and cogent ground for the High Court to have examined the Sessions Judge because his evidence was not essential for a just and proper decision of the case particularly when the appellants never challenged the statements made in the judgment regarding the live cartridg... |
As far as the evidence of Muniraj Singh the Investigating Officer is concerned that also was not necessary because that really amounted to allowing the prosecution to fill up gaps. Ratio |
Even if we hold that the High Court was justified in exercising its discretion under section 540 Cr.P.C. the High Court committed a serious error of law in not allowing the appellants an opportunity to rebut the statement of the witnesses examined by the High Court which caused a serious prejudice to the accused. Ratio |
It was argued by counsel for the State that there is no provision in the Criminal Procedure Code which requires the Court to allow the appellant an opportunity to rebut the evidence of witnesses summoned ' under section 540 Cr.P.C. ARG |
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