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Mr. Chari for the State advanced a further argument before us in case his main argument that the pardon was valid failed and said that the approver, even if we ignore the pardon, was a competent witness ARG |
In support of his contention he strongly relied upon the decision in Kandaswamy Gounder ARG |
In re : the appellant (I.L.R. 1957 Mad 715 ), and the cases referred to therein, in particular the decision in Winson v. Queen ((1866) L.R. I Q.B ARG |
What has been held in all these cases is that where the trial of a person who was charged with having committed an offence or offences jointly with several persons is separated from the trial of those persons, he would be a competent witness against them though of course there will always be the question as to what wei... |
Mr. Chari then referred to s. 133 of the Evidence Act and pointed out that this section clearly makes an accomplice evidence admissible in a case and that an approver whose pardon is found to be invalid does not cease to be an accomplice and contends that he is, therefore, as competent a witness as he would have been i... |
Learned counsel further pointed out that the decisions show that however undesirable it may be to adduce the evidence of a person jointly accused of having committed an offence along with others, his evidence is competent and admissible except when it is given in a case in which he is being actually tried ARG |
This legal position does not, according to him, offend the guarantee against testimonial compulsion and he points out that that is the reason why an accused person is not to be administered an oath when the court examines him under s. 342 (1) for enabling him to explain the circumstances appearing in evidence against h... |
If pardon is tendered to an accused person and eventually it is found that the pardon is illegal such person is pushed back into the rank of an accused person and being no more than an accomplice would be a competent witness ARG |
The question raised is an important one and requires a serious consideration Ratio |
Mr. Chari in support of his contention has cited a large number of cases, Indian as well as English, and certain passages from Halsbury's Laws of England Ratio |
But in the view we take about the legal validity of the pardon tendered, we do not wish to pronounce one way or the other on this very interesting question Ratio |
Now, as regards the reliability of the approver Ratio |
It is no doubt true that an approver has always been regarded as an infamous witness, who, on his own showing has participated in a crime or crimes and later to save his own skin, turned against his former associates and agreed to give evidence against them in the hope that he will be pardoned for the offence committed... |
The High Court seems to think that before reliance could be placed upon the evidence of the approver it must appear that he is a penitent witness Ratio |
That, in our opinion, is not the correct legal position Ratio |
The section itself shows that the motivating factor for an approver to turn, what in England is called "King's evidence" is the hope of pardon and not any noble sentiment like contrition at the evil in which he has participated Ratio |
Whether the evidence of the approver should in any given case be accepted or not will have to be determined by applying the usual tests such as the probability of the truth of what he has deposed to the circumstances in which he has come to give evidence whether he has made a full and complete disclosure, whether his e... |
The court has, in addition, to ascertain whether his evidence has been corroborated sufficiently in material particulars Ratio |
What is necessary to consider is whether applying all these tests we should act upon the evidence of the approver should be acted upon Ratio |
We however, find that certain documents upon which Mr. Chari wants to rely are not included in the paper book Ratio |
It would take considerable time if we were to adjourn this matter now and give an opportunity to the parties to include those documents on record Ratio |
The better course would be for us to set aside the acquittal of the respondents and send back the appeal to the High Court ?or being decided on merits Ratio |
The High Court will of course be bound by the finding which we have given on the questions of law agitated before us Ratio |
What it must now do is to consider the entire evidence and decide for itself whether it is sufficient to bring home all or any of the offences to the respondents Ratio |
We may mention that the High Court's observation that the approver's evidence was treated as unreliable by the learned Additional Sessions judge is not correct Ratio |
Of course, the view taken by the Additional Sessions judge is not binding on the High Court Ratio |
But it should remove from its mind the misconception that the Additional Sessions judge has not believed him Ratio |
There is another thing which we would like to make clear Ratio |
The decision in Sarwan Singh v. The State of Punjab ([1957] B. C. R. 953.), on which reliance has been placed by the High Court has been explained by this Court in the case of Maj Ratio |
E. G. Barsay v. The State of Bombay Ratio |
This Court has pointed out in the latter decision that while it must be shown that the approver is a witness of truth, the evidence adduced in a case cannot be considered in compartments and that even for judging the credibility of, the approver the evidence led to corroborate him in material particulars would be relev... |
The High Court should bear this in mind for deciding whether the evidence of the approver should be acted upon or not Ratio |
Then again it would not be sufficient for the High Court to deal with the evidence in a general way Ratio |
It would be necessary for it to consider for itself the evidence adduced by the prosecution on the specific charges and then to conclude whether those charges have been established or not Ratio |
The prosecution would be well, advised if, instead of placing the evidence on each and every one of those large number of charges against the respondents, it chooses to select a few charges under each head other than the head of conspiracy and concentrates on establishing those charges, this would save public time and ... |
With these observations we set aside the acquittal of the respondents and remit the appeal to the High Court for decision on merits in the light of our observations Ratio |
Appeal allowed RPC |
Case remanded RPC |
Appeal No. 62 of 1964. FAC |
Appeal by special leave from the judgment and decree dated July 28, 1959 of the Allahabad High Court in Civil Miscellaneous Writ No. 2071 of 1959. FAC |
A. V. Viswanatha Sastri, Rameshwar Nath, section N. Andley and P. L. Vohra, for the appellant. FAC |
Gopal Singh and R. N. Sachthey, for the respondents. FAC |
The Judgment of the Court was delivered by Subba Rao, J. FAC |
The facts leading up to this appeal may briefly be narrated. FAC |
Gujarat Cotton Mills Co. Ltd., hereinafter called the Company, is a limited company having its registered office at Ahmedabad. FAC |
In the year 1938 the Company appointed Messrs. Pira Mal Girdhar Lal & Co., hereinafter called the Agency Firm, as its Managing Agents. FAC |
On February 28, 1938, a formal agreement was entered into between the Company and the Agency Firm. FAC |
The said Agency Firm was formed under an instrument of partnership dated February 26, 1938, with 11 partners 3 of them are compendiously described as the "Bombay Group" and the remaining 8 of them as the "Kanpur Group". FAC |
With certain variations in the constitution of the Agency Firm, the said firm functioned as the Managing Agents of the Company till September 1946. FAC |
In September 1946 shareholding of the partners of the Agency Firm in the Company was as follows: Kanpur Group 32,500 shares. FAC |
Bombay Group 26,362 shares. FAC |
538 Because of certain differences between the partners, they decided among themselves to sell their shares and to surrender their Managing Agency. FAC |
On September 7, 1946, the said 11 partakers entered into an agreement with the firm of Messrs. Chhuttu Ram & Sons of Bihar, hereinafter called the Purchaser Firm. FAC |
Under that agreement it was provided that 65012 shares held by the 11 partners of the Agency Firm, directly or through their nominees, should be sold to the Purchaser Firm at Rs. 65 per share and that the Agency Firm should before November 15, 1946, resign its 'office of Managing Agency of the Company. FAC |
It was a condition of the agreement that it should have operation only after the Purchaser Firm or its nominees were appointed as the Managing Agents of the Company. FAC |
On October 30, 1946, the Company held its General Body Meeting and accepted the resignation of the Agency Firm and by another resolution appointed the Purchaser Firm as the Managing Agents in its stead. FAC |
In terms of the agreement, the Purchaser Firm paid for the entire shareholding of the partners of the Agency Firm at Rs. 65 per share. FAC |
The appellant is a Hindu undivided family. FAC |
Its karta was one Dwarkanath and the present karta is his son Ramji Prasad. FAC |
The said family was 'one of the II partners of the Agency Firm belonging to 'the Kanpur Group. FAC |
Out of the total shareholding the appellant held 11,230 shares. FAC |
It received the price for the said shares at the rate of Rs. 65 per share. FAC |
It was assessed to income tax for the year 1948 49 and the Income tax Officer by his order dated June 5, 1952 assessed the excess amount of Rs. 2,98,909 realized by the assessee under the head "income from business", i.e., the difference in the amount for which it purchased the shares and that for which it sold them. F... |
On appeal, the Appellate Assistant Commissioner of Income tax confirmed the same. FAC |
On further appeal, the Income tax Appellate Tribunal, Delhi Bench, held that the said receipt bad to be taxed as "capital gains" under section 12B. of the Income tax Act, 1922, and directed the Income tax Officer to modify the assessment in accordance with its order. RLC |
The assessee made an application under section 35 of the Income tax Act to the Tribunal for further directions and the Tribunal, by its order dated March 26, 1954, amended its previous order dated August 3, 1953, by substituting the word "processed" in place of the word "assessed" in its previous order. FAC |
The assessee raised various contentions before the Income tax Officer, inter alia, that the said income was not liable to be taxed under section 12B of the Income tax Act under the head "capital gains" and that in any case in order to determine the amount of capital gains the market value of the shares only should be t... |
The Income tax Officer rejected the said contentions of the assessee. FAC |
He redetermined the assessable income under the heading "capital gains" but did not issue a notice of demand as prescribed in section 29 of the Income tax Act. FAC |
After making an infructuous attempt to get suitable directions 539 from the Appellate Tribunal, on March 5, 1956, the assessee filed an application before the Income tax Officer to issue a notice of demand under section 29 of the Income tax Act so that it might prefer an appeal against the same to the appropriate autho... |
But the Income tax Officer refused to issue any such notice. FAC |
The assessee preferred an appeal against that order to the Appellate Assistant Commissioner under section 30 of the Income tax Act and that was dismissed on March 8, 1957, on the ground that it was not maintainable. FAC |
Meanwhile on September 27, 1956, the appellant filed an application before the Commissioner of Income tax under section 33A(2) of the Income tax Act for revising the order of the Income tax Officer dated September 28, 1955. FAC |
On March 28, 1959, the Commissioner dismissed the revision petition on two grounds, namely, (1) that it was not clear whether the revision petition under section 33A of the Income tax Act was maintainable, and (ii) on merits. FAC |
It may be noticed that long before the revision petition was dismissed, the appeal filed by the assessee against the order of the Income tax Officer to the Appellate Assistant Commissioner was dismissed on March 8, 1957. Ratio |
On November 18, 1957, the attention of the Commissioner was also drawn to the fact that the Bombay High Court in the case of a reference to that Court at the instance of the Bombay Group held that the market value of the shares should be taken into consideration to ascertain the excess realized on the sale of the share... |
The Commissioner ignored that decision in dismissing the revision. FAC |
Thereafter, on July 28, 1959, the assessee filed Writ Application No. 2071 of 1959 in the High Court of Judicature at Allahabad, inter alia, for a writ of certiorari or any other direction or order of like nature to quash the order of the Income.tax Commissioner, Lucknow, dated March 28, 1959, and the Order of the Inco... |
The High Court dismissed the said application in limine mainly on the following three grounds: (1) the affidavit filed in support of the writ petition was highly unsatisfactory and on the basis of such an affidavit it was not possible to entertain the petition; (2) the facts given in the affidavit were incomplete and c... |
Mr. A.V. Viswanatha Sastri, learned counsel for the appellant, contended that the affidavit filed in support of the petition was in accordance with law, and that, even if there were any defects, the Court should have given an opportunity to the appellant to rectify them; and that the High Court should have held 540 tha... |
He further contended that the High Court went wrong in holding that the facts in the Bombay decision were different from those in the present case, for the facts in both the cases were the same and in fact they arose out of the same transaction, namely, the sale of the shares by the Agency Firm to the Purchaser Firm. A... |
Mr. Gopal Singh, learned counsel for the Revenue, while supporting the order of the High Court raised a preliminary objection, namely, that the order of the Commissioner under section 33A of the Income tax Act was administrative act and, therefore, no writ of certiorari would lie to the High Court to quash that order u... |
We shall first take the preliminary objection, for if we maintain it, no other question will arise for consideration. Ratio |
Article 226 of the Constitution reads: " . . every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the natu... |
This article is couched in comprehensive phraseology and it exfacie confers a wide power on the High Courts to reach injustice wherever it is found. Ratio |
The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. Ratio |
It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. Ratio |
That apart High Courts can also issue directions orders or writs other than the prerogative writs. Ratio |
It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this county. Ratio |
Any attempt to equate the scope of the power of the High Court under article 226 of the constitution with that of the English Courts to 541 issue prerogative writs is to introduce the Unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of government... |
Such a construction defeats the purpose of the article itself. Ratio |
To say this not to say that the High Courts can function arbitrarily under this article. Ratio |
Some limitations are implicit in the article and others may be evolved to direct the article through defined channels. Ratio |
This interpretation has been accepted by the Court in Basappa vs Nagappa(1) and P.J. Irani vs State of Madras(2). PRE |
But we are satisfied that this case falls directly within the confines of the certiorari jurisdiction as understood in England. Ratio |
It is well settled that a writ of certiorari can be issued only to quash a judicial or a quasi judicial act and not an administrative act. Ratio |
It is, therefore, necessary to notice the distinction between the said two categories of acts. Ratio |
The relevant criteria have been laid down with clarity by Atkin, L.J., in King vs Electricity commissioners(3), elaborated by Lord Justice Scrutton in Rex vs London County Council(4) and authoritatively restated in Province of Bombay vs Kusaldas section Advani(5). PRE |
The said decisions laid down the following conditions to be complied with: (1) The body of persons must have legal authority; (2) the authority should be given to determine questions affecting the rights of subjects; and (3) they should have a duty to act judicially. PRE |
So far there is no dispute. Ratio |
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