original jurisdiction writ petition number 259 of 1990.  under article 32 of the companystitution of india . yogeshwar prasad r.k. jain satish chandra a.s.
pundir gopal subramanium mrs s.d. dikshit jitender
sharma r. venkataramani mrs. rachna gupta m.p. shorawala

k. garg pramod swarup r.n. keshwani mrs. anil katiyar
anis ahmed khan and a.p. mohanty for the appearing parties. the judgment of the companyrt was delivered by
kuldip singh j. before us are the members of uttar
pradesh higher judicial service  hereinafter called the
service  promotees and the direct recruits as usual are
in the fray. this is their second round of litigation in
this companyrt. earlier in p.k. dixit and others v. state of

p. and others 1988 1 s.c.r. 398 this companyrt directed
the preparation of fresh seniority list in accordance with
the observation made therein. the allahabad high companyrt
thereafter framed and circulated final seniority list of the
service of august 25 1988. both promotees and direct
recruits are number satisfied with the same. they have
challenged the said seniority list inter alia on the ground
that it is number in companyformity with the directions of this
court in dixits case. we may briefly state the necessary facts. the service
was initially governed by statutory rules called the uttar
pradesh higher judicial service rules 1953  hereinafter
called 1953 rules . recruitment to the service under the
said rules was from two sources by promotion and the
direct recruitment. in chandra mohan v. state of uttar
pradesh 1967 1 s.c.r. 77 this companyrt struck-down the 1953
rules so far as the said rules provided direct recruitment
of the service. as a companysequence there was numberdirect
recruitment to the service till the year 1975-76. this
members of the service promoted under the 1953 rules were
designated as civil and sessions judges. on may 8 1974 the uttar pradesh higher judicial
service  abolition of cadre of the civil and sessions
judges  rules 1974  hereinafter called 1974 rules  came
into force. under these rules the cadre of civil and
sessions judges was abolished. rules 2 and 3 of 1974 rules
which are relevant are reproduced hereafter

abolition of the cadre of civil and sessions
judges. with effect from the date of companymencement
of these rules the cadre of civil and sessions
judges shall stand abolished and the uttar pradesh
higher judicial service shall with effect from the
said date companysist of the posts of district and
sessions judges and additional district and
sessions judges only. creation of posts and companyfirmation   1  upon
the abolition of the cadre of civil and sessions
judges permanent and temporary posts of additional
district and sessions judges equal in number of the
permanent and temporary posts respectively of
civil and sessions judges existing immediately
before the date of companymencement of these rules
shall stand created with effect from the said date
and the officers holding the posts of civil and
sessions judges immediately before the said date
shall become additional district and sessions
judges and be designated accordingly. an officer who is companyfirmed on the post of
civil and sessions judge before the companymencement of
these rules shall with effect from the date of such
confirmation be deemed to be companyfirmed on the post
of additional district and sessions judge. it is thus obvious that the cadre of civil and
sessions judges stood abolished and a new cadre of
additional district and sessions judges companysisting of
permanent and temporary posts equal in number of the
permanent and temporary posts respectively of civil and
sessions judges came into existence under the 1974 rules. the civil and sessions judges holding permanent or temporary
posts in the service were re-designated as additional
district and sessions judges with effect from may 8 1974
the date when the 1974 rules were enforce. on that date 271
officers were working as additional district and sessions
judges against 235 posts  153 permanent and 82 temporary  in
the service. the service was reconstituted and given a freshlook by
the rules framed under article 309 read with article 233 of
the companystitution of india called the uttar pradesh higher
judicial service rules 1975  hereinafter called the 1975
rules . these rules came into force with effect from april
5 1975. the relevant rules 5 6 8 and 26 are reproduced
hereinafter

source of recruitment.-- the recruitment of the
service shall be made--  a  by direct recruitment
of pleaders and advocate of number less than seven
years standing on the first day of january next
following the year in which the numberice inviting
applications is published
 b  by promotion of companyfirmed members of the uttar
pradesh nyayik sewa  hereinafter referred to as the
nyayik sewa who have put in number less than seven
years service to be companyputed on the first day of
january next following the year in which the numberice
inviting applications is published
provided that for so long as suitable officers
are available from out of the dying cadre of the
judicial magistrates companyfirmed officers who have
put in number less than seven years service to be
computed as aforesaid shall be eligible for
appointment as additional sessions judges in the
service. explanation.-- when a person has been both a
pleader and an advocate his total standing in both
the capacities shall be taken into account in
computing the period of seven years under clause
 a . quota.-- subject to the provisions of rule 8
the quota for various sources of recruitment shall
be--

direct recruitment from the bar 15

uttar pradesh nyayik sewa 70 of the
vacancies. uttar pradesh judicial officers 15 service
 judicial magistrates . 8.-- number of appointments to be made.--  1  the
court shall from time to time but number later than
three years the last recruitment fix the number of
officers to be taken at the recruitment keeping in
view the vacancies then existing and likely to
occur in the next two years. if at any selection the number of the selected
direct recruits available for appointment is less
than the number of recruits decided by the companyrt to
be taken from that source the companyrt may increase
correspondingly the number of recruits to be taken
by promotion from the nyayik sewa
provided that the number of vacancies filled
in as aforesaid under this sub-rule shall be taken
into companysideration while fixing the number of
vacancies to be allotted to the quota of direct
recruits at the next recruitment and the quota for
direct recruits may be raised accordingly so
however that the percentage of direct recruits in
the service does number in any case excess 15 per cent
of the total permanent strength of the service. provided further that all the permanent
vacancies existing on may 10 1974 plus 31
temporary posts existing on that date if and when
they are companyverted into permanent posts shall be
filled by promotion from amongst the members of the
nyayik sewa and only the remaining vacancies shall
be shared between the three sources under these
rules
provided also that the number of vacancies
equal to 15 per cent of the vacancies referred to
in the last preceding proviso shall be worked out
for being allocated in future to the judicial
magistrates in addition to their quota of 15 per
cent prescribed in rule 6 and thereupon future
recruitment  after the promotion from amongst the
members of the nyayik sewa against vacancies
referred to in the last preceding proviso  shall be
so arranged that for so long as the additional 15
per cent vacancies worked out as above have been
filled up from out of the judicial magistrates the
allocation of vacancies shall be as follows

15 by direct recruitment. 30 from out of the judicial magistrates. 55 from out of the members of the nyayik
sewa. seniority.--  1  except as provided in sub-rule
 1  seniority of members of the service shall be
determined as follows. seniority of the officers promoted from
the nyayik sewa vis-a-vis the officers
recruited for the bar shall be determined from
the date of companytinuous officiation in the
service in the case of promoted officers and
from the date of their joining the service in
the case of direct recruits. where the date
of companytinuous officiation in the case of an
officer promoted from the nyayik sewa and the
date of joining the service in the case of a
direct recruit is the same the promoted
officer shall be treated as senior
provided that in the case of a promoted
officer the maximum period of companytinuous
officiation in the service shall number for the
purpose of determining seniority exceed three
years immediately preceding the date of
confirmation
statement of facts filed by the high companyrt shows that
on april 5 1975 when the 1975 rules came into force there
were 229 permanent and 7 temporary  total 236  posts in the
service. this total included 31 temporary posts mention in
second proviso to rule 8 2  of 1975 rules. by that date
these posts had become permanent. the statement further
shows that 263 officers were working as additional district
and sessions judges on the said date. we take it that it
that there were 236 posts in the service on the companymencement
of the 1975 rules. k. dixit and 7 other promotee officers filed two writ
petitions under article 32 of the companystitution of india
challenging the seniority assigned to them on two grounds. it was companytended that all the posts existing on april 5
1975 when the 1975 rules came into force should be deemed to
have been filled by the officers holding the designation of
additional district and sessions judges on that date. secondly it was companytended that the promotees were entitled
to the seniority from the date of their actual companytinuous
officiation and number by limiting the said period to three
years preceding the date of companyfirmation. this companyrt by its
judgment dated october 8 1987 in dixits case  supra
partly allowed the writ petitions and directed the high
court to frame the seniority list afresh keeping in view the
observations made in the judgment. the promotes claim that the judgment in dixit case is
wholly in their favour on the first point. the direct
recruits however companytest the said claim and assert
that the companytention of the promotees was rejected and their
claim was companyfined to the number of posts as provided in
first proviso to rule 8 2  of the 1975 rules. pursuant to
the judgment in dixit-case the high companyrt issued a tentative
seniority list on february 11 1988. the promotees were
fully satisfied with the same as according to them the said
list was drawn in companyformity with the judgment in dixit-
case. objections were invited against the tentative
seniority list and thereafter the high companyrt companystituted a
five-judge companymittee to finalise the list. on the basis of
the report of the companymittee final seniority list was issued
on august 25 1988. o.p. garg and 4 other promotees have
filed writ petition number 259 of 1989 challenging the final
seniority list. p.k. dixit and others petitioners in the
original dixit-case have filed civil miscellaneous petition
number 3473 of 1989 seeking clarification of the said judgment
and also supporting the case of the promotees. the direct
recruits have filed writ petition number 1304 of 1988 under
article 32 of the companystitution of india impugning the final
seniority list issued by the high companyrt. it is interesting
that both promotees and the direct recruits are relying on
the judgment in dixit-case and are companytending that the final
seniority list issued by the high companyrt is companytrary to the
said judgment. the promotees the direct recruits and the high companyrt
have sought support from dixit-case on the basis of their
own interpretation of the judgment. apparently there are
diverse observations in dixit-case which are being
stretched by the parties in support of their rival
contentions. the promotees strongly rely on the following
paragraphs from dixit-case to show that the first point
argued before the bench was decided in their favour. in the written affidavit filed by the high companyrt
it is number disputed that before these rules were
brought into force all the posts which were
available on the date on which these rules came
into force have to be filled in by promotion as
till that date there was numberrule requiring direct
recruitment. but unfortunately the high companyrt in
their return have number mentioned the exact number of
vacancies existing on that date also the number of
officers who were officiating on the date as civil
and sessions judges or additional district and
sessions judges who were entitled to be included in
that cadre of higher judicial service under these
rules. it is number disputed that on the date on which
these rules  1975 rules  were brought into force
all the posts available were to go to the promoted
officers and the only thing that the high companyrt is
expected to do is to find out how many posts were
available on that date and how many persons were
officiating in the higher judicial service or
equivalent posts on that date and their seniority
ought to be fixed on the basis of their promotion
to the posts except where an officer was number found
fit or where officer companycerned was reverted back to
the judicial posts. the documents do number disclose
that any one of these judicial officers who were
promotees have been reverted. the documents also
do number disclose that at any time the high companyrt
considered the question of their companyfirmation and
any one of them was number found fit for companyfirmation
or that it was decided to postpone the date of
confirmation because the work of the officer was
number upto the mark. the record produced by the high
court only shows the date from which these
petitioners were promoted and started officiating
as additional district judges and the date on which
they were ultimately companyfirmed. during this period
their case was companysidered at any time does number
appear from the record produced in this case number
was the companytention of the learned companynsel appearing
for the high companyrt. it therefore is number disputed
that these petitioners who were promoted before
these rules  1975 rules  were brought into force
were never found unfit for companyfirmation and in this
view of the matter therefore it is clear that all
posts available on the date on which these new
rules were brought into force will have to be
filled in by these promoted
officers who were working in the officiating
capacity in the post of higher judicial service on
the date on which these rules were brought into
force. so far as the situation before these rules
were brought into force is companycerned even during
the companyrse of argument number much companytroversy appears
to exist as it is clear that the question of
direct recruitment and the quota of the direct
recruits vis-a-vis promotees was number in existence. based on the above quoted findings in dixit-case the
promotees plausibly claim that on april 5 1975 when the
1975 rules came into force all the 236 posts in the service
had already been companysumed by the existing members of
the service who were working as additional district and
sessions judges. till that date the recruitment to the
service was only by way of promotion and as such there was
numberquestion of allocating any post to the direct recruits
who had number yet born in the service. the direct recruits on the other hand assert that
the dixit-case decides the companytroversy in their favour. reliance in that respect is placed on the following
observations in the judgment
this also appears to be the intention of the rules
when they were framed in 1975 as is clear from
the proviso to rule 8. it reads
provided further that the permanent vacancies
existing on may 10 1974 plus 31 temporary posts
existing on that date if and when they are
converted into permanent posts shall be filled by
promotion from amongst the members of the nyayik
sewa and only the remaining vacancies shall be
shared between the three sources under these rules
it therefore is clear that even these rules
provided that all the posts  permanent  available
in the higher judicial service existing on may 10
1974 plus 31 temporary posts existing on that date
which may become permanent later shall be filed by
promotion from amongst the members of the nyayik
sewa. it is therefore clear that all the posts in
the higher judicial service lying vacant on may 10
1974 plus thirty one will have to be filled in from
the officers of the nyayik sewa. may be that some
of these posts may be occupied by promotee officers
who were given promotions
on ad hoc basis and working on those posts or that
the posts may be lying vacant. whatever may be
the situation on the basis of what has been
discussed above and also as has been clearly
provided in these rules the matter will have to be
gone into the high companyrt afresh and fill in
all the posts in the higher judicial service
available on may 10 1974 plus 31 posts from the
officers of the nyayik sewa. it has therefore to be accepted that all those
who were working as civil and sessions judges on
8th may 1974 automatically became additional
district and sessions judges and what was left was
only a companysideration of their cases of companyfirmation
and in so doing in view of the companyclusions arrived
at by us and also as has been provided in the
proviso to rule 8 quoted above all the posts
available on 10th may 1974 plus 31 posts
 temporary  on that date will have to be filled in
from the cadre of nyayik sewa by promotion. but in view of what we have discussed earlier
about the appointments on the posts available
before these rules were brought into force and to
fill in temporary posts we feel that the matter
will have to be examined afresh by the high companyrt. so far as posts available on 10th may 1974 plus 31
posts are companycerned they will have to be filled in
only by promotees as we have discussed earlier and
also in view of proviso to rule 8 and after doing
it examine the cases of promotion and direct
recruitment after the companying into force of these
rules and the vacancies available and after
consideration the cases in according with these
rules the high companyrt will prepare afresh
the seniority list which may be numberified so that if
any objections are there they may be placed for
determination in according with the rules and in
the light of the discussions above. the precise assertion of the direct recruits
thereforeis that this companyrt interpreting the second proviso
to rule 8 2  of the 1975 rules in dixist-case has held that
the promotees as on may 10 1974 are entitled to all the
permanent posts available on that date plus 31 temporary
posts and apart from that they cannumber lay claim exclusively
to the posts created thereafter. the high companyrt accepted the companytention of the direct
recruits
and gave 153 permanent posts existing on may 10 1974 plus
31 posts which became permanent subsequently to the
promotees. companysequently out of the 263 additional district
and sessions judges who were holding the posts on april 5
1975 only 184  15331  were taken to be the existing members
of the service and remaining officers were asked to enter
the service through the promotion quota under the 1975
rules. the second point in dixit-case was regarding fixation
of seniority of the promotees under the 1975 rules. whether
whole of the companytinuous officiation or part of it is to be
counted towards seniority was the moot-point. rule 26 1  a
of the 1975 rules provides that seniority of the direct
recruits is to be determined from the date of their joining
the service whereas that of the promotees from the date of
continuous officiation in the service. but the first
proviso to the said rule further limits the period of
continuous officiation of a promotee for determining
seniority to a maximum of three years immediately preceding
the date of companyfirmation. the promotees companytended in dixit-
case that they were entitled to the companynting of their total
period of companytinuous officiation towards seniority. this
court rejected the companytention in the following words
having gone through these rules it appears that
the companytention advanced by the petitioners in
respect of proviso to rule 26 about seniority does
number appear to be justified. the high companyrt while framing the impugned seniority
list did number follow the seniority rule. the high companyrt
determined the seniority of the promotees by giving them
benefit of three years companytinuous officiation immediately
preceding the date of availability of permanent vacancy
whereas the rule provides three years preceding the date of
confirmation. mr. yogeshwar prasad learned senior advocate appearing
for the promotees. mr. satish chandra learned senior
advocate for the direct recruits and mr. gopal subramanium
learned advocate appearing for the high companyrt have addressed
elaborate arguments before us. the learned companynsel have
read and re-read the judgment in dixit-case in support of
their respective companytentions. the thrust of mr. yogeshwar
prasads arugment is twofold. he companytended that the service
consisting of additional district and sessions judges was
constituted under the 1974 rules which companytinued till april
5 1975 when the service was reconstituted under the 1975
rules. according to him all
the posts in service permanent and temporary available on
april 5 1975 would be deemed to have been filled from
amongst the additional district and sessions judges working
on that date. only the posts created thereafter companyld be
filed from the three sources under the 1975 rules. the
second companytention of mr. prasad was that the benefit of
continuous officiation towards seniority cannumber be companyfined
to three years and the promotees are entitled to the
fixation of their seniority on the basis of companytinuous
length of service. mr. satish chandra on the other hand has argued that
second proviso to rule 8 2  of the 1975 rules which is
retrospective in its application limits the number of
vacancies as on may 10 1974 to be filled by promotion from
amongst the members of nyaik sewa. according to him under
the said proviso all the other posts created after may 10
1974 are to be filled from the three sources in accordance
with the 1975 rules. mr. satish chandra further argued that
the high companyrt acted illegally and in violation of first
proviso to rule 26 1   a  of the 1975 rules in determining
the seniority of the promotees by giving them the benefit of
three years officiation immediately preceding the date of
availability of permanent vacancy. according to him such
period under the above proviso can only be preceding the
date of companyfirmation. the judgment in dixit-case by and large deals with
the main points raised by the learned companynsel for the
parties before us. but in view of divergent view point
taken by the promotees the direct recruits and the high
court on the interpretation of the said judgment we are of
the view that it is necessary to have a fresh look into the
matter to finally settle the long-drawn companytroversy between
the parties. the service is a prestigious and sensitive
service companysisting of officers who form the back-bone of
uttar pradesh judiciary. the service is the feeder-cadre
for appointment to high companyrt judges. it is necessary to
settle their rights in clear and unambiguous terms. taking an overall view of the arguments advance by mr.
yogeshwar prasad and mr. satish chandra we pose the
following three questions for our determination

what is the scope and interpretation of second
proviso to rule 8 2  of the 1975 rules? whether
the additional district and sessions judges
holding the posts on april 5 1975 can claim that
by operation of the 1974 rules they stood
appointed to the service and as such companysumed all
the posts which were available
on april 5 1975 or they were only entitled to
vacancies under the second proviso to rule 8 2  of
the 1975 rules. whether the period of companytinuous officiation in
case of a promotee for determining seniority is
to be companynted in terms of first proviso to rule
26 1  a0 of the 1975 rules or in accordance with
the principle adopted by the high companyrt. isnt it
the requirement of law that a promotee is entitled
to seniority in the service from the date when
vacancy in his quota became available. seniority and appointment in the service being
inter-linked a further question which necessarily
arises for our companysideration is whether rules 22 3
and 22 4  of the 1975 rules which provide
appointments to temporary posts in the service from
two sources of promotees excluding the direct
recruits can be legally sustained. we may take-up the first point for companysideration. after the decision by this companyrt in chandra mohans
case  supra  the service companysisted of only promotees with
the designation of civil and sessions judges. they were
promoted from the lower cadre of u.p. civil services
 judicial branch  called nyayik sewa. thereafter under
the 1974 rules which came into force on may 8 1974 the
civil and sessions judges holding permanent or temporary
posts were redesignated as additional district and sessions
judges. by operation of the 1974 rules all the newly
designated additional district and sessions judges became
members of the service. rule 2 of the 1974 rules
specifically provided that with effect from the date of
commencement of those rules the uttar pradesh higher
judicial service shall companysist of the posts of district and
sessions judges and additional district and sessions
judges. it is thus obvious that the service was
reconstituted under the 1974 rules and all the additional
district and sessions judges to the extent posts were
available became members of the said service by operation
of law. there were 271 officers working in the service on
may 8 1974 and there were 235 posts  153 permanent plus 82
temporary  available in the service. therefore 235
officers out of the 271 working on may 8 1974 for whom the
posts were available in the service would be deemed to be
members of the service under the 1974 rules. the service as
constituted under the 1974 rules companytinued to operate till
april 5 1975 when the 1975 rules were enforced. till that
date the only source of recruitment to the service was by
way of promotion. on april 5 1975
the service companyprised of 236 posts  229 permanent plus 7
temporary . they were 263 officers working in the service
on that date. 235 posts were already occupied by the
officers who had become members of the service under the
1974 rules and the one additional post available would go to
the 236th officer holding the post on april 5 1975. the
236 posts companyprising the service on april 5 1975 have to be
assigned and given to the 236 officers out of 263 who were
working a additional district and sessions judges and they
are to be treated as existing members of the service as on
april 5 1975. it is further axiomatic that the 236
officers including those holding temporary posts would en
bloc rank senior to all those who were appointed to the
service after april 5 1975 under the 1975 rules. the view
which we have taken is also in companyformity with the
observations in dixit-case relied upon by the promotees
which we approve. companying to the second proviso to rule 8 2  of the 1975
rules relied upon by the direct recruits we are of the view
that the interpretation given to the proviso by the high
court is number companyrect. a bare reading of the proviso shows
that it was number applicable to the service as reconstituted
under the 1974 rules companysisting of additional district and
sessions judges. the proviso states that all the permanent
vacancies existing on may 10 1974 plus 31 temporary posts
existing on that date shall be filled by
promotion from amongst the members of the nyayik sewsa and
only the remaining vacancies shall be shares between the
three sources under these rules. the additional district
and sessions judges working on may 10 1974 were number members
of the nyayik sewa they had already become members of the
service on may 8 1974 under the 1974 rules. the proviso
talks of nyayik sewa and the three sources under the
rules which obviously means it is visualising a situation
which was to exist after the enforcement of the 1975 rules
on april 5 1975. rule 8 of the 1975 rules is under the
heading number of appointments to be made and various
parts of the said rule deal with different situation for
making appointments from different sources at different
times. proviso 2 was enacted to meet a particular
situation. the proviso talks of existing vacancies on may
10 1974. on that date the posts held by the additional
district and sessions judges who were members of the
service companyld number be termed as existing vacancies. the
existing vacancies on may 10 1974 companyld only be those
vacancies which were left-over after providing posts to all
the officers who were redesignated as additional district
and sessions judges under the 1974 rules. the proviso was
meant to deal with a situation which might have arisen in
the event there had been more posts and less number of
officers to occupy
the said posts on the reconstitution of the service under
the 1974 rules. in that situation the balance-vacancies
could be the existing vacancies falling within the
mischief of the proviso. since prior to april 5 1975 the
only source of recruitment to service was by way of
promotion the proviso intended to fill all those posts
created before that date and available on that as existing
vacancies  surplus posts  from amongst the members of
nyayik sewa in the first instance and thereafter operate
the quota from three sources under the 1975 rules. the
proviso was meant to carry the surplus vacancies as on may
10 1974 to april 5 1975 for the benefit of the promotees. but since the number of officers working in the service as
on may 10 1974 and april 5 1975 was much more than the
posts available in the service the situation envisaged by
the proviso did number arise. the second proviso to rule 8 2
of the 1975 rules companyld number operate and since it was
intended to meet one-time eventually it has become
redundant. the interpretation placed on the proviso by the
direct recruits and the high companyrt if accepted would expose
the rule to an attack on the grounds of discrimination and
arbitrariness. the additional district and sessions judges
had number only the right to be appointed to the service but
they were so appointed by the operation of 1974 rules. the
proviso even though retrospective companyld number have taken
away the vested rights of the officers who had already
become members of the service. this companyld number be the
intention of the framers of the 1975 rules. we therefore
reject the companytention of mr. satish chandra. third proviso
to rule 8 2  which is dependent on second proviso must
obviously meet the same fate. the net result is that on
april 5 1975 all the 236 officers working against 236
posts  229 permanent7 temporary  as additional district and
sessions judges in the service shall be deemed to be
existing members of the higher judicial service as
constituted under the 1975 rules and they shall en bloc rank
senior to all other officers appointed to the service
thereafter from the three sources in accordance with their
quota under the rules. we may number take up the second point as to how the
seniority of the promotees who have rendered companytinuous
officiating service be fixed under the 1975 rules. mr.
satish chandra learned companynsel for the direct recruits has
taken us through rule 3 d  which defines member of the
service 4 3  13 and 19 2  of the 1953 rules and has
contended that temporary posts cannumber form part of the cadre
of the service. according to him service rendered in or
against a temporary post is outside the pale of the 1975
rules and cannumber be companynted for seniority. he has further
relied upon clauses  13  and  19  of rule 9 of the u.p. fundamental rules which define lien and officiate and
contended that an officiating appointment can only be made
against a permanent post and as such the companytinuous
officiation immediately prior to the date of companyfirmation
provided in the first proviso to rule 26 1  a  of the 1975
rules can only be the officiation against a permanent post. it is number necessary for us to go into this question because
the point is number res integra. it is number disputed that the
service companysists of permannt and temporary posts. this
court in dixits case after taking into companysideration the
scheme of the 1975 rules held as under
in rule 22 of phrase used is to make appointment
to the service on the occurrence of substantive
vacancies and it was companytended on the one side
that substantive vacancies does number mean permanent
vacancies whereas on the other hand it was
contended that if only means permanent vacancies. the substantive vacancy has number been defined in the
rules but proviso to rule 8 which has been quoted
above speaks of permanent vacancies and temporary
posts. in fact the scheme of the rules clearly
indicates that there are permanent posts and
temporary also which are created to meet companytigency
and it may in due companyrse be made permanent. it
therefore companyld number be doubted that when
appointment under rule 22 is companytemplated in the
service of substantive vacancies it may be both
temporary or permanent but the vacancy must be in
the cadre. we agree with the above findings and accept the
position that the service companysists of permanent as well as
temporary posts. the substantive vacancy has number been
defined under the 1975 rules but as held by this companyrt in
dixit-case there can also be a substantive vacancy in a
temporary post which is part of the cadre. all temporary
posts created under rule 4 4  of the 1975 rules are
additions to the permanent strength of the cadre and as such
form part of cadre. appointments under rule 22 of the 1975
rules can be made to a permanent post as well as to a
temporary post. so long as the temporary post has an
independent existence and is a part of the cadre-strength
the appointment against the said post has to be treated as
substantive appointment. there is numberdispute that the seniority of a direct
recruit appointment to the post in service has to be
determined from the date of companytinuous officiation in the
service. the question for our determination is whether the
seniority of a promoted officer is to be companynted from the
date of companyntinuous officiation giving him benefit of full
period of officiation as claimed by mr. yogeshwar prasad or
only for a maximum period of three preceding the date of
confirmation as provided by first proviso to rule 26 1  a
as agrued by mr. satish chandra. the high companyrt has number
followed either of the methods and has determined the
seniority by giving benefit to a promotee of three years
officiation preceding the date of availability of a
permanent post. we have given our thoughtful companysideration to the
arguments of the parties. this companyrt has time and again
held that when an incumbent is appointed to a post in
accordance with the service rules his seniority has to be
counted on the basis of companytinuous length of service and number
in reference to the date of companyfirmation. even in present
case the promotees have been companyfirmed long after the
availability of permanent vacancies. this companyrt in s.b. patwardhan others etc. etc. v. state of maharashtra
others 1977 3 scr 775 observed that companyfirmation is one
of the inglorious uncertainties of government service
depending neither on efficiency of the incumbent number on the
availability of substantive vacancies. a companystitution
bench of this companyrt in direct recruit class ii engineering
officers association v. state of maharashtra and others
1990 2 scc 715 approved patwardhans case and laid down
the following propositions in this respect

once an incumbent is appointed to a post
according to rule his seniority has to be companynted
from the date of his appointment and number according
to the date of his companyfirmation. the companyollary of the above rule is that where
the initial appointment is only ad hoc and number
according to rules and made as a stop-gap
arrangement the officiation in such post cannumber be
taken into account for companysidering the seniority. if the initial appointment is number made by
following the procedure laid down by the rules but
the appointee companytinues in the post uninterruptedly
till the regularisation of his service in
accordance with the rules the period of
officiating service will be companynted. when appointments are made from more than one
source it is permissible to fix the ratio for
recruitment from the different sources and if
rules are framed in this regard
they must ordinarily be followed strictly. keeping in view the scheme of the 1975 rules we are of
the view that first proviso to rule 26 1  a  of the 1975
rules which links the seniority with the date of
confirmation is on the face of it arbitrary and as such
violative of article 16 of the companystitution of india. since
the recruitment to the service is from three sources the
existence of a vacancy either permanent or temporary is the
sine quo number for claiming benefit of companytinuous length of
service towards seniority. the period of
officiation service which is number against a substantive
vacancy  permanent or temporary  cannumber be companynted towards
seniority. while striking down first proviso to rule 26
 1  a  of the 1975 rules we hold that the companytinuous
officiation service by a promotee shall be companynted for
determining his seniority only from the date when a
substantive vacancy against a permanent or temporary post is
made available in his quota under the 1975 rules. finally we take-up the third point. recruitment to the service under the 1975 rules is from
three sources and is based on quota as provided therein. the cadre companysists of permanent as well as temporary posts. we have already interpreted the seniority rule to the mean
that the seniority of the direct recruit is to be determined
from the date of his joining the service and that of
promotee on the basis of companytinuous officiation service from
the date when a vacancy whether permanent or temporary
becomes available in his quota. with these characteristics
of the service it is obligatory that there should be
equality of opportunity to enter the service for all the
three sources of recruitment. the seniority in the service
is companysequential and dependent on appointment. if the
recruitment rule gives unjustifiable preference to one
source of recruitment the seniority rule is bound to become
unworkable. the object of having recruitment from different
sources is to have a blended service to create healthy
competition and in the process achieve efficiency. if one
of the sources of recruitment is dealt with unevenly under
the service rules the said objective cannumber be fulfilled. the 1975 rules permit appointment to temporary vacancies in
the service by promotion and from the judicial service. no
direct recruitment to the temporary vacancies is provided
under the said rules. rule 18 of the 1975 rules provides
procedure for selection of the direct recruits. rule 20
lays down the procedure for recruitment by promotion and
rule 22 provides for appointment. these rules are
reproduced as under

procedure of selection-  1  the selection
committee referred to in rule 16 shall scrutinize
the applications received and may thereafter hold
such examination as it may companysider necessary for
judging the suitability of the candidates. the
committee may call for interview such of the
applicants who in its opinion have qualified for
interview after scrutiny and examination. in assessing the merits of a candidate the
selection companymittee shall have due regard to his
professional ability character personality and
health. the selection companymittee shall make a
preliminary selection and submit the record of all
candidates to the chief justice and recommended the
names of the candidates in order of merit who in
its opinion are suitable for appointment to the
service. the companyrt shall examine the recommendations
of the selection companymittee and having regard to
the number of direct recruits to be taken prepare
a list of selected candidates in order of merit and
forward the same to the governumber. promotion of members of the nyayik sewa.  1
recruitment by promotion of the members of the
nyayik sewa shall be made by selection on the basis
of seniority-cum-merit. the field of eligibility for recruitment by
promotion shall be companyfined to four times the
number of vacancies to be filled by promotion. the
selection companymittee shall prepare a list in order
of seniority of the officers eligible under rule
5 b  of these rules. the selection companymittee shall after
examining the record of the officers included in
the list prepared under sub-rule 2  of this rule
make a preliminary selection of the officers who in
its opinion are fit to be appointed on the basis of
seniority-cum-merit. in assessing the merits of a
candidate the selection companymittee have due regard
to his service record ability character and
seniority. the list shall companytain the names of
officers twice the number of
vacancies required to be filled by promotion of the
members of the nyayik sewa. the selection companymittee shall forward the
list of the candidates chosen at the preliminary
selection to the chief justice along with the names
of the officers who if any in the opinion of the
committee have been passed over for promotion to
the service. the companyrt shall examine the recommendations
of the selection companymittee and make a final
selection for promotion and prepare a list in order
of seniority of the candidates who are companysidered
fit for promotion and forward the same to the
governumber. the list shall remain operative only
till the next recruitment. appointment. - 1  subject to the provisions
of sub-rules  2  and  3  the governumber shall on
receipt from the companyrt of the lists mentioned in
rules 1830 and 21 make appointments to the service
on the occurrence of substantive vacancies by
taking candidates from the lists in the order in
which they stand in the respective list. appointments to the service shall be made on
the rotational system the first vacancy shall be
filled from the list of officers of the nyayik
sewa the second vacancy shall be filled from the
list of direct recruits  and so on  the remaining
vacancies shall thereafter be filled by promotion
from the list of the officers of the nyayik sewa. provided that for so long as suitable officers
are available from the cadre of the judicial
magistrates appointments to the service shall be
made in such a way that the second fifth and eighth
 and so on  vacancy shall be filled from the list
of judicial magistrates. appointment for temporary vacancies or in
officiating capacity shall be made by the governumber
in companysultation with the companyrt from amongst the
members of the nyayik sewa. provided that for so long as suitable officers
are available from the cadre of the judicial
magistrate appoit-
ments on temporary vacancies or in officiating
capacity shall be made in companysultation with the
court from amongst the judicial magistrate
according to the quota fixed for that source under
these rules
provided further that for so long as such members
of the judicial service as are companysidered suitable
for appointments on temporary vacancies or in
officiating capacity are number available in
sufficient number the governumber in companysultation
with the companyrt may fill in number more than 50 per
cent of such vacancies from amongst the officers of
the cadre of judicial magistrates. the appointments shall be made or rotational
system the first vacancy shall be filled from the
list of officers of the nyayik sewa the second
vacancy shall be filled from the list of judicial
magistrates  and so on . is obvious from rules 22 3  and 22 4  reproduced above
that appointments to the temporary vacancies are to be made
from amongst the members of the nyayik swea and the judicial
magistrates. under rule 20 the selection companymittee has to
prepare a merit list in order of seniority of the officers
of nyayik sewa twice the number of vacancies and the said
list remains operative till the next recruitment. similarly
a merit list of eligible officers from the judicial
magistrates is prepared. whenever temporary posts are
created appointments to the said posts under rule 22 3  and
22 4  are made from out of the lists so prepared. rule 18 on
the companytrary is silent about the preparation of a similar
merit-list obviously because rule 22 does number permit any
appointment to the temporary posts from amongst the direct
recruits. we see numberjustification is number applying the quota
rule to the temporary posts in the service and companyfining
appointments to said posts to the two sources of
promotees.this companyrt in a.ks subraman v. union of india
1975 2 s.c.r. 979 held as under
the quota rule will be enforced with reference to
vacancies in all posts whether permanent or
temporary included in the sanctioned strength of
the cadre  except such vacancies as are purely of a
fortuitous of adventitious nature
this companyrt in p.s. mahal v. union of india 1984 3

c.r. 847 held as under
it is therefore obvious that if a vacancy arises
on account of an incumbent going on leave or for
training or on deputation for a short period it
would be a fortuitous or adventitious vacancy and
the quota rule would number be attracted in case of
such a vacancy. but where a vacancy arises on
account of in incumbent going on deputation for a
reasonably long period and there is numberreasonable
likelihood of the person promoted to fill such
vacancy having to revert the vacancy would be
subject to the quota rule. it is therefore apparent that what has to be
considered for the applicability of the quota rule
is a vacancy in a post included in the sanctioned
strength of the cadre
it is thus clear that the vacancies in the posts of
executive engineer arising on account of deputation
of executive engineers to other departments
organisations and public undertakings for a period
of one or more years were long term vacancies and
they companyld number be regarded as fortutitous or
adventitious in character and hence they were
subject to the quota rule. when temporary posts under rule 4 4  of the 1975 rule
are created as addition to the cadre we see numberjustification
to deny the direct recruits their share of the quota as
provided under rule 6 of the said rules. rules 5 of the 1975
rules specifically lays down that recruitment to the service
shall be made from three sources including the direct
recruits. rule 6 fixes the quota for various sources of
recruitment to the service and allocates 15 per cent of the
posts in the service to the direct recruits. rules 5 and 6
read with rule 22 2  provide for appointments to the service
in accordance with quota. these rules have to be read
homogeneously and as a part of the same scheme. the service
having companyprised of three sources including the direct
recruitment there is numberjustification to deprive the direct
recruits of their share in the temporary posts in the
service. unless the direct recruits are given their due
quota in the temporary posts the seniority rule cannumber
operate equitably. we see numberjustification whatsoever in
having rule 22 3  and 22 4  of the 1975 rules which deprive
one of the sources of recruitment the benefit of appointment
to the temporary posts. the rules on the face of it are
discriminatory. there is numbernexus with the object sought to
be achieved by framing the abovesaid rules. we therefore
strike down rules 22 3  and 22 4  of the 1975 rules being
discriminatory and violative of articles 14 and 16 of the
constitution of india. we however direct that the
appointments already made under these rules  22 3  and 22 4
shall number be invalidated on this ground. we further direct
that while selecting candidates under rule 18 the companymittee
shall prepare a merit list of candidates twice the number of
vacancies and the said list shall remain operative till the
next recruitment. we further direct that the appointments
under rules 22 1  and 22 2  of the rules shall be made to
permanent as well as temporary posts from all the three
sources in accordance with the quota provided under the 1975
rules. before parting with the judgment we make it clear that
the findings and observations in dixit-case to the extent
those are companytrary to this judgment shall be deemed to have
been over-ruled. we allow the writ petitions and the civil miscelleneous
petition quash the final seniority-list dated august 25
1988 and direct the high companyrt to prepare circulate
invite objections and finalise the seniority list of the
service in the light of the findings given and the
observations made by us in this judgment. we reiterate our
findings hereunder

all the 236 promotee officers against 236 posts  229
permanent plus 7 temporary  as additional district and
sessions judges on april 5 1975 shall be deemed to be
existing members of the service as companystituted under the
1975 rules and they shall en bloc senior to all other
officers appointed to the service thereafter from three
sources in accordance with their quota under the 1975
rules.  we strike-down  first proviso to rule 26 1  of the
1975 rules and direct that the companytinuous
officiation service by a promotee appointed under the rules
shall be companynted for determining his seniority from the date
when a substantive vacancy in permanent or temporary post is
made available in his quota under the 1975 rules.  3.  we also strike-down rules 22 3  and 22 4  of the
1975 rules but the appointments already made under these
rules shall number be invalidated.


criminal appellate jurisdiction criminal appeals number. i
2 of 1971.
appeals by special leave from the judgment and order dated
the 13th may 1970 of the punjab and haryana high companyrt in
criminal appeals number. 170 and 201 of 1970.
janardan sharma and r.-n. sachthey for the appellant. nuruddin ahmed and u. p. singh for the respondents. the judgment of the companyrt was delivered by
khanna j. pargat singh  31  of village taraori was
convicted by learned sessions judge karnal under section 302
indian penal companye and was sentenced to death. gurdial singh
 35  of village ramana was
also tried along with pargat singh and was companyvicted under
section 302 read with section 34 indian penal companye. he too
was sentenced to death. on appeal and reference the punjab
and haryana high companyrt set aside the companyviction of both the
accused and acquitted them. the state of haryana has filed
these appeals against the acquittal of the two accused by
special leave. the prosecution also filed charge sheet against gurdial
singh of village taraori a brother of pargat singh accused
but as he was found to be insane the companymitting magistrate
directed that his case be separated and a separate challan
be filed against him. the said gurdial singh of village
taraori was in the meanwhile directed to be sent to the
hospital for his treatment. the prosecution case is that avtar kaur  pw 3  was married
about 33 yearsago to gurinder singh of village shamgarh. gurinder singh wasone of the biggest landlords of karnal
district and belongedto a family of chiefs. about four. years after the marriage lal singh who was aged 65 or 70
years at the time of the present occurrence was brought by
gurinder singh to reside with him in shamgarh. lal singh
was previously in the service of the mother of avtar kaur. lal singh was respected like a guru and was knumbern as dadaji. gurinder singh used to companysult lal singh deceased with
regard to his affairs and generally acted upon the advice of
lal singh. when a ceiling on lands was imposed gurinder
singh with a view to save some land and prevent its being
declared surplus transferred 23 acres of land situated in
village taraori to pargat singh accused and an equal area of
land in that village to gurdial singh brother of pargat
singh. pargat singh and gurdial singh were sons of sher
singh maternal uncle of gurinder singh and used to reside
with him. after the land had been transferred by gurinder
singh to pargat singh and gurdial singh they shifted to
village taraori which is at a distance of about 4 miles from
shamgarh. they however used to visit shamgarh off and on. gurinder singh died a few months before the present
occurrence. he was survived by his widow avtar kaur and
three sons daijit singh gurjeet singh and sukhjeet singh-
and two daughters sukhiwan kaur and harjiwan kaur. sukhjeet
singh and harjiwan kaur were the only two unmarried
children. sukhjeet singh was a student of doon school dehra
dun while harjiwan kaur was studying in anumberher school in
dehra dun. both of them were present in their house at
shamgarh during the days of the present occurrence having
come there during winter vacation. the house is also
described during the companyrse
of evidence as a fort. daljit singh and gurjeet singh also
used to live in that house. sukhjiwan kaur too was present
there on the night of occurrence. after the death of gurinder singh avtar kaur used to
consult lal singh in every matter. gurinder singh at the
time of his death was companystructing a companyd storage. one
chamber of the companyd storage had been companypleted during the
life time of gurinder singh while the other chamber yet
remained to be companypleted. some money was required by avtar
kaur in that companynection. lal singh deceased accordingly
called pargat singh accused about 15 days before the present
occurrence and told him that as gurinder singh had given to
him and his brother land worth rupees two lakhs they should
help avtar kaur when she was in need of money. pargat singh
accused then stated that he had numberhing to do with that. he
also abused lal singh and told him that he was numberody to
demand the money. lal singh deceased then threatened pargat
singh that he would get a suit filed through sukhjeet
singh who had recently become major in respect of the land
which had been given to pargat singh and his brother gurdial
singh. daijit singh eldest son of gurinder singh it is stated was
a spend thrift. lal singh deceased and gurinder singh used
to tell daijit singh number to spend too much money. after the
death of gurinder singh daljit singh demanded more land in
addition to the land which had been given to him by gurinder
singh in his life time. demand was also made by daljit
singh for more money. there used to take place quarrels
between avtar kaur and daijit singh on that account. the case of the prosecution further is that on december 11
1968 avtar kaur sukhjiwan kaur harjiwan kaur sukhjeet
singh and lal singh took their meals in the dining room on
the ground floor of the fort. gurjeet singh was on that day
away to ferozepore to attend a marriage. after finishing
the meals at 9.15 p.m. avtar kaur and her two daughters went
to her bed room on the upper storey. sukhjeet singh had a
room on the ground floor and he went to that room at about
10 p.m. avtar kaur after finishing other work went to the
room of lal singh. lal singh at that time sat on his company
while avtar kaur sat nearby on a chair. avtar kaur during
the companyrse of her talk asked lal singh to settle the matter
about daljit singh and to give to him what was his due. when avtar kaur and lal singh deceased were talking they
heard the sound of a car in the outer companyrtyard. daljit
singh pargat singh pargat singhs brother gurdial singh
gurdial
singh of ramana and rajinder singh alighted from the car. rajinder singh belongs to village bairsal. he had borrowed
rs. 3000/- in companynection with the election of chanda singh
to the haryana legislative assembly in 1968. earlier on
that day rajinder singh refunded rs. 1500 out of the amount
of rs. 3000/- to ram lal who was working as an accountant
of gurinder singhs estate. as daljii singh rajinder
singh and gurdial singh of ramana had earlier in the day
gone for shikar sukhjeet singh came out and enquired from
daljit singh as to what he had shot. sukhjeet singh was
then told by daljit singh that the had been able to shoot
four partridges. daljit singh then went upstairs to his
own room taking his gun with him. sukhjeet singh also went
to his own room. about 5 or 10 minutes thereafter sukhjeet
singh and avtar kaur heard some footsteps going up the
staircase. pargat singh his brother gurdial singh and
gurdial singh of ramana then came inside the room wherein
avtar kaur was talking to lal singh deceased. pargat singh
was holding a double barrel gun p2 in his hand. the said
gun belonged to rajinder singh. avtar kaur enquired from
pargat singh and others as to why they had companye at such
late hour. pargar singh replied that they had companye back
after shikar. lal singh then asked them as to whether all
three of them had become shikaris. pargat singh replied in
the affirmative and said that they would make a shikar of
lal singh. pargat singh at the same time fired at lal
singh. before the shot was fired at lal singh pargat singh
and his two companypanions made some signs to each other. lal
singh on receipt of the shot fell down on the spot and died
soon thereafter. avtar kaur was stunned because of the
incident. pargat singh and his two companypanions then left. harjiwan kaur sukhjiwan kaur and sukhjeet singh on hearing
the gun shot came to the room where avtar kaur was present
and were told about the occurrence by her. avtar kaur was
then taken to her room. sukhjeet singh was directed by her
to call accountant ram lal. when ram lal came there he was
told by avtar kaur that pargat singh had killed lal singh by
firing a shot with a double barrel gun. ram lal was told to
go to the police station and to bring the police. ram lal
then woke up the car driver and went in the car towards the
police station. when the car reached near the bus stop of
village shamgarh on the grand trunk road ram lal saw a
police party which included sub inspector ram rikh. ram lal
then told the sub inspector that lal singh had been murdered
in the fort and that ram lal had been deputed by avtar kaur
to call the sub inspector. sub inspector ram rikh then went
to the fort where avtar kaur made statement pd at 3 a.m. to
him. the said statement was sent to police station butana
at a distance of 6-1/2 miles from the place of occurrence
and formal first information report pj was prepared on the
basis of statement pd at 3. 45 p.m. inquest report relating
to the dead body was thereafter prepared by the sub
inspector. the dead body was sent to the mortuary in
karnal. post mortem examination on the dead body was
performed by dr. jagdeep singh at 4-30 p.m. on december 12.
on. the morning following the occurrence i.e. on december
12 1968 a number of persons including daljit singh
rajinder singh pargat singh and the latters brother
gurdial singh assembled at the
fort. sub inspector ram rikh did number arrest pargat singh or
his brother gurdial singh daljit singh then produced gun p2
of rajinder singh along with an empty cartridge which had
been fired from that gun these articles were taken into
possession. during the companyrse of investigation it is stated a companynter
versions of the occurrence came to light sub inspector ram
rikh and the deputy superintendent of police who was
supervising the investigation kept superintendent of police
brar  dw 1  informed of the investigation. final report
under section 173 of the companye of criminal procedure in
court was filed by sub inspector ram rikh. in that report
only gurdial singh of village ramana was shown as the
culprit.the names of pargat singh and his brother gurdial
singh were mentioned in companyumn number 2 of the challan. the
reason for that according to sub inspector ram rikh was
that those two persons had been found on investigation to
be innumberent. the two accused in their statements under
section 342 of the companye of criminal proceduredenied the
prosecution allegations which appeared against them in the
prosecution evidence. in defence the accused examined
superintendent of police s. s. brar who deposed that in view
of the fact that there were two versions of the occurrence
he ordered that before. any arrest was made a thorough
probe should be made in the matter to find out the truth. the trial companyrt accepted the prosecution version of the
occurrence and in doing so relied upon the evidence of
avtar kaur. it was further held that the evidence of avtar
kaur was companyroborated by that of sukhjeet singh and
harjiwan kaur who had deposed that when they looked out on
hearing the gun shot they saw pargat singh holding a gun
and two gurdial singhs going downstairs. regarding the
counterversion of the occurrence which appeared from the
police statements of avtar kaur sukhjeetsingh and
harjiwan kaur the trial companyrt held that companypared to that
version the version as given in the evidence of the above
witnesses in companyrt was reliable. in the opinion of the
trial companyrt the investigation of the case was tainted and
unfair. the argument that there was delay in recording the
report was rejected. on appeal the learned judges of the high companyrt found that
thecircumstances of the case showed that the first
information report was. recorded subsequent to the time at
which it purported to have been recorded and was the result
of deliberation and companysultations the high companyrt also found
that the witnesses upon whose testimony reliance had been
placed by the trial companyrt had supported anumberher version of
the occurrence. it was found that an attempt had been made
to improve upon the story with a view to save daljit singh
eldest son of avtar kaur ocular evidence was also found to
be number in companysonance with the medical evidence. in the
result the high companyrt accepted the appeal set aside the
conviction of the accused and acquitted them. we have heard mr. janardan sharma on behalf of the appellant
state and mr. nuruddin on behalf of the accused-respondents
and
are of the opinion that the judgment of the high companyrt calls
for numberinterference. it is number disputed that lal singh deceased died as a result
of gun shot wound. dr. jagdeep singh who performed post
mortem examination on the dead body found a single oval
wound of entry with irregular inverted margins l-3/4 in
transverse diameter and l-1/4 in vertical diameter placed
on the right side of the neck just above the calvicle about
half inch from the mid-line. the margins of the wound
showed blackening and scorching. hair of beard were number
singed. the wound was directed backwards and downwards and
towards the midline producing extensive laceration of
underlying tissues and fracture of calvicle bone of right
side. right pleura was ruptured on the top and the pleural
cavity companytained large amount of blood. upper lobe of right
lung was lacerated companypletely. middle and lower lobes were
contused showing bleeding on the surface. a part of the
projectile lying on the right side of the thoracic cavity
was recovered from mediastinum and two from the left lung
which was also showing haemorrhages at various parts. in
the mediastinum big vassels were ruptured at many places and
mediastinum was found companytaining large amount of clotted
blood. the injuries were sufficient in the ordinary companyrse
of nature. to cause death. the case of the prosecution is that it was pargat singh
accused who fired shot at lal singh and thus killed him. the prosecution for this purpose relied upon the ocular
evidence of avtar kaur  pw 3  who in the companyrse of her
deposition supported the prosecution case as given above. the high companyrt did number place reliance upon the testimony of
this witness and we find numbersufficient ground to take a
different view. avtar kaur was companyfronted with her
statement made before the police. in that statement avtar
kaur stated that after taking her meals she went to her
daughters room and slept there. it was further stated by
avtar kaur that on the night of occurrence at about 10 or i
i p.m. rupinder kaur wife of daljit singh came to avtar
kaur and woke her up. rupinder kaur also told avtar kaur
that daljit singh was calling her below in the drawing
room. avtar kaur further stated before the police that she
had been told by gurdial singh of ramana that in a drunken
state he had shot dead lal singh deceased and he be
pardoned. according to that statement of avtar kaur she
immediately directed that police be called and thereupon
gurdial singh of village ramana tried to run away but he
was secured by pargat singh and daljit singh. daljit singh
also snatched the gun from his hand it is thus plain that
the version given by avtar kaur in her statement before the
police was materially different. in view of that fact number
much reliance can obviously be placed upon the testimony of
avtar kaur in companyrt. anumberher fact of which numbere may be taken is that according
to avtar kaur she was sitting on a chair in the room of lal
singh and it was while sitting on that chair that she saw
the occurrence. numbersuch chair was found in that room when
sub inspector ram rikh arrived there on the night of
occurrence. it is also numberodys case that any chair was
removed from that room after the occurrence. the absence of the chair in that roam creates companysiderable
doubt about the companyrectness of the evidence of avtar kaur. the prosecution has sought companyroboration of the evidence of
avtar kaur from the testimony of sukhjeet singh pw 4  and
harjiwan kaur  pw 5  according to whom they saw pargat
singh holding a gun and two gurdial singhs going down the
stairs after the occurrence. the version of these witnesses
in their statements before the police was however
materially different. sukhjeet singh stated before the
police that on reaching the drawing room he enquired from
daljit singh as to what was the matter and that daljit singh
then replied that gurdial singh had shot dead lal singh. the witness also stated before the police that gurdial singh
of village ramana was lying at the foot of avtar kaur and
was saying that under intoxication he had fired the shot and
he be pardoned. harjiwan kaur in her statement made before
the police stated that she had number seen anybody going or
coming. she had also number heard the sound of any gun shot. according to that statement she her mother and sister were
sleeping in her room on the night of occurrence when
rupinder kaur came and woke them up. the high companyrt also gave companyent reasons for arriving at the
conclusion that the first information report appeared to
have been recorded much later and number at the time it
purported to have been done. police station butana is at a
distance of about 13 miles from karnal. the two place are
connected by mettalled road on which buses ply frequently. companyy of the first information report was received by the
ilaka magistrate at karnal at 2. p.m. if the formal first
information report had in fact been prepared at 3.45 a.m.
it is number explained as to why the companyy of the same was number
delivered to the magistrate on the morning of december 12
1968. likewise if the inquest report was prepared by sub
inspector ram rikh shortly after recording report pd at 3
a.m. there is numbersufficient reason as to why the dead body
which was sent in the trolly of a tractor to karnal should
be brought to the doctor number before 3.55 p.m. the evidence
that it took time to get the tractor ready has number been
accepted by the high companyrt and we are number inclined to take a
different view. there is anumberher fact which also indicates that on the
morning of december 12 1968 the police had numbermaterial with
it about the companyplicity of pargat singh for the murder of
lal singh deceased. pargat singh was admittedly amongst
those persons who assembled at the house of avtar kaur on
the morning of december 12 1968. although sub inspector
ram rikh numbericed his presence he did number arrest pargat
singh. it seems rather difficult to believe that if the
first information report had been recorded before the
assemblage of different persons including pargat singh on
the morning of december 12 1968 and the name of pargat
singh had been mentioned in that report as the assailant of
lal singh the police sub inspector would number take him into
custody
reliance was placed by the trial companyrt upon the statement of
pargat singh made before the companymitting magistrate that on
december i 1 1968 he had gone to the room of lal singh to
pay respects. there is however numberhing in that statement
to show that it related to a visit at day time or at night
time. numberincriminating inference can in the circumstances
be drawn from that statement against pargat singh. the present is a case wherein the prosecution witnesses have
come out with two inconsistent versions of the occurrence. one version of the occurrence is companytained in the evidence
of the witnesses in companyrt while the other version is
contained in their statements made before the police. according to the version given in companyrt it was pargat singh
who shot dead the deceased while according to the other
version it was gurdial singh of ramana who was responsible
for the crime. again according to the version given in
court the occurrence was witnessed by avtar kaur. as
against that the version companytained in the police statement
was that avtar kaur had number witnessed the occurrence.


criminal appellate jurisdiction criminal appeal number 108 of
1964.
appeal from the judgment and order dated september 4 1963
of the calcutta high companyrt in criminal revision number 396 of
1962.
debrata mookerjee b. l. mehta r. h. dhebar and b. r. g.

achar for the appellant. n. mukherjee for the respondent. the judgment of the companyrt was delivered by
hidayatullah j. this is an appeal by certificate under art. 134  1   c  of the companystitution against the judgment of the
high companyrt of calcutta dated september 4 1963 by which the
conviction of the respondent motilal kanumberia under s. 5 of
the imports and exports  companytrol  act 1947 and the sentence
of fine of rs. 200/ in default simple imprisonment for one
month  imposed by the presidency magistrate 6th companyrt
calcutta were set aside and an acquittal was entered. the
facts of the case are number in companytroversy and may therefore
be stated briefly. motilal kanumberia was a director of
lachminarayan jute manufacturing company limited calcutta. the
company was managed by a firm of the name of mukhram
lachminarayan and motilal kanumberia was one of the partners of
the firm. the companypany and the managing agents had a companymon
address in calcutta. motilal kanumberia used to sign on behalf
of the managing agents and also generally to deal with the
affairs of the companypany. all transactions in this case were
by motilal kanumberia and he had signed the documents to which
reference will be made presently. in february 1955 the government of india approved of the
proposal of the companypany to manufacture hackle and companybing
pins and sanctioned the import of plant and machinery for
the
93 5
purpose. the companypany was permitted to apply to the chief
controller of imports new delhi for a licence. the letter
of government is ex. 2 dated february 4 1955. on february
ii. 1955 the companypany applied to the chief companytroller of
imports new delhi on the proper application form for an
import licence. in that application the companypany stated that
the machinery was to be installed or used at their mills at
konnaggar eastern railway  ex. 1 . on may 26 1955 a
licence was issued  ex. 3 . the licence read as follows--
this licence is issued subject to the
conditions to the goods licensed as detailed
in the policy book for the current licensing
period and any public numberices that may be
issued in this behalf from time to time. licence number 035925
counterfoil
number available for foreign exchange unless
authorised by reserve bank of india. import trade companytrol
 valid for all india ports
 number transferable except under a letter of
authority from the authority who issued the
licences or from any import trade companytroller . messrs. shree luchminarain jute manufacturing
co. limited of 59 netaji subhas road calcutta-
1. are hereby authorised to import the goods
of which particulars are given below-

country from which companysigned west
germany. quantity description machinery as per
of goods list attached
for the manufacture
of hackling
combing pins. approximate value c.i.f. rs. 188000/-
 rupees
one lakh and eighty eight thousand only

period of shipment revalidated
upto 31st may 1957.

name address of m s. schunacher metal
manufacturer shipper or works
aktiengesche suppliers ilacheft aachen
germany. limiting factor for purpose of clearing
through
customs value

name of actual user in
self
india
this licence is granted under government of
india late companymerce department numberification
number 23. itc/43 dated the 1st july 1943 as
continued in force by the imports and exports
 companytrol  act 1947 18 of 1947  and subject to
the rules and orders issued thereunder. this
licence is also without prejudice
to the
applications of any other prohibitions or
regulations affecting the importation of the
goods which may be in force at the time of
their arrival. sd. illegible
section officer
26-5-55
for chief companytroller of imports and exports. 26-5-1955.
issued from file number l. iv/49  11  cg/55.  space for endorsements by import trade
control
authorities
this licence is issued with an initial
validity period of one year from the date of
issue. it will be revalidated at or before
the end of the said period of one year for a
further period of two years provided
satisfactory evidence is produced that the
order for the goods has been accepted by the
foreign suppliers and a firm companytract is made
within the initial period of one year. in no
case however will the validity period extend
beyond three years from the date of issue. in the companyering letter which was sent when
forwarding the licence the chief companytroller
said inter alia-
 3 . the licence is granted to you subject to
the following companyditions-

in case the project involves any capital
issue and if such capital issue is number
sanctioned the licence is liable to
cancellation. that if any sanction to the project is
necessary under the laws of the central
provin-
cial or a state government the same should be
obtained and the position reported to this
office by the licensee in the absence of such
sanction being received the licence is liable
to cancellation. the licence is liable to cancellation if
particulars as to progress of time in
accordance with the detailed instructions
contained in the accompanying slip are number
furnished. the government do number guarantee for
supply of raw materials required for
manufacture of the goods. on june 19 1956 the companypany asked for revalidation of the
licence and the licence was extended to may 31 1957. this
extension is mentioned in the licence above reproduced at
number 4. on december 13 1956 the companypany entered into an
agreement  ex. 25  with shalimar wood products  p  limited of
calcutta for the sale of the machinery imported by the
company. the sale it is submitted was at invoice price
and there was numberprofit. on the arrival of the machinery in
february of the following year the companypany authorised
shalimar wood products to receive the shipping documents
from the companypanys bankers and to clear it from the docks. the plant and machinery were then cleared by the agents of
the shalimar wood products and the latter took them with a
view to installing them in their own factory. on july 30 1958 the companypany wrote a letter  ex. 7  to the
chief companytroller of imports informing him that owing to the
death of their director of sawal ram kanumberia who was
interested in the production of the said pins the companypany
was companypelled to sell the imported plant and machinery to
shalimar wood products.  p  limited calcutta and asked for the
approval of the transaction. the chief companytroller of
imports in reply pointed out that permission ought to have
been obtained before the transfer and that the companypany had
apparently companymitted a companytravention of the import licence. a report was made to the police for investigation and later
a companyplaint under s. 5 of the import and exports  companytrol
act 1947 was filed in the companyrt of the chief presidency
magistrate calcutta by the deputy chief companytroller of
imports and exports. lachminarain jute manufacturing
company was named as the accused represented by shri
motilal kinumberia. in paragraph 2 of the companyplaint the
company was stated to be the accused but in later paragraphs
of the companyplaint motilal kanumberia was named as the accused. in the prayer it was requested that the companyrt should summon
accused motilal kanumberia representing the companypany and the
managing agents to answer the charge of a breach of the
pci/66-14
conditions of the licence which companystituted an offence under
s. 5 of the imports and exports  companytrol  act 1947 read
with clause  5  of the imports  companytrol  order number 17 of
1955 dated december 17 1955. motilal kanumberia appeared at
the trial was questioned as an accused pleaded number guilty
and stood the trial. he does number appear to have objected to
being arraigned as an accused person a point he took later
in the high companyrt and has taken before us. the prosecution
examined a large number of witnesses and filed documents to
prove the above facts numbere of which is number denied. the
presidency magistrate 6th companyrt calcutta companyvicted
kanumberia under s. 5 of the imports and exports  companytrol  act
1947 for companytravention of clause  5  of the imports
 companytrol  order 1955 and sentenced him to a fine of rs. 200/- or simple imprisonment for one month. on revision the
high companyrt acquitted him but certified the case as fit for
appeal to this companyrt and the present appeal is the result. as the prosecution is in respect of an offence under s. 5 of
the imports and exports  companytrol  act 1947 we shall begin
by examining what the ingredients of that offence are. under the scheme of that act there is a power to prohibit or
restrict imports and by s. 3 the central government is
enabled to make provision by order published in the
official gazette for prohibiting restricting or otherwise
controlling them. section 5 prescribes penalty for
contravention of an order. the section as amended by act 4
1960 is set down here

if any person companytravenes or attempts to
contravene or abets a companytravention of any
order made or deemed to have been made under
this act or any companydition of a licence granted
under any such order he shall without
prejudice to any companyfiscation or penalty to
which he may be liable under the provisions of
the sea customs act 1878 as applied by sub-
section  2  of section 3 be punishable with
imprisonment for a term which may extend to
one year or with fine or with both.  the words underlined were introduced in
1960 . the companyplaint in this case was filed after this amendment. different orders at different times were passed by the
central government under s. 3 and a word may be said about
the orders of 1943 and 1948 although on the date of the
transfer of machinery  december 13 1956  only the order of
1955 was in force. the first order was made under sub-rule  3  of rule 84 of
the defence of india rules in force in 1943  numberification
number 23 i.t.c. 43 dated 1st july 1943 . that order was
general and there was numberprovision authorising the
imposition of companyditions in the licence the breach of which
would be deemed to be a breach of the order. in 1948 anumberher order was issued under s. 3  numberification
number 2 i.t.c. dated 6th march 1948 . it provided for
imposition of companyditions but the provisions of the order did
number indicate that any particular companydition would be deemed
to be included in a licence if number expressly included. the
provisions of that order may be read here
in exercise of the powers companyferred by sub-
section  1  and sub-section  3  of section 3
of the imports and exports  companytrol  act 1947
 18 of 1947  the central government is
pleased to make the following order namely-

any officer issuing a licence under
clauses  viii to  xiv  of the numberification of
the government of india in the late department
of companymerce number 23 i.t.c./43 dated the 1st
july 1943 may issue the same subject to one
or more of the companyditions below

that the goods companyered by the licence
shall number be disposed of or otherwise dealt
with without the written permission of the
licensing authority or any person duly
authorised by it

that the goods companyered by the licence on
importation shall number be sold or distributed
at a price more than that which may be
specified in any directions attached to the
licence

that the applicant for a licence shall
execute a bond for companyplying with the terms
subject to which a licence may be granted

that the licence shall number be
transferable except in accordance with the
permission of the licensing authority or a
person duly authorised by it

that such other companyditions may be
imposed which the licensing authority
considers to be expedient from the ad-
ministrative point of view and which are number
inconsistent with the provisions of the said
act. where a license is found to have company-
travened the order or the terms and
conditions embodied in or accompanying a
licence the
appropriate licensing authority or the chief
controller of imports may numberify him that
without prejudice to any penalty to which he
may be liable under the imports and exports
 companytrol  act 1947  18 of 1947  or any other
enactment for the time being in force he shall
either permanently or for a specified period
be refused any further licence for import of
goods. by this order the licensing authority was
given the power to include companyditions in a
licence. on december 7 1955 an order was issued
 numberification number 17/55 dated december 7
1955 . it companysolidated all the rules in one
place and by clause 12 read with schedule iv
repealed the earlier two orders and some
others but while effecting this repeal it
added a saving clause--
provided that anything done or any action
taken including any appointment made or
licence issued under any of the aforesaid
orders shall be deemed to have been done or
taken under the companyresponding provision of
this order. the order of 1955 also included several new
provisions regarding companyditions which may be
introduced in licences and others which would
be deemed to be so introduced. companyditions
relevant here may be numbericed. companyditions of licence. the licensing authority issuing a
licence under this order may issue the same
subject to one or more of the companyditions
stated below-

that the goods companyered by the licence
shall number be disposed of or otherwise dealt
with without the written permission of the
licensing authority or any person duly
authorised by it

that the goods companyered by the licence on
importation shall number be sold or distributed
at a price exceeding that which may be
specified in any directions attached to the
licence

that the applicant for a licence shall
execute a bond for companyplying with the terms
subject to which a licence may be granted.  2

it shall be deemed to be a companydition of
every such licence that

numberperson shall transfer and numberperson
shall acquire by transfer any licence issued
by the licensing authority except under and in
accordance with the written permission of the
authority which granted the licence or of any
other person empowered in this behalf by such
authority. that the goods for the import of which a
licence is granted shall be the property of
the licensee at the time of import and
thereafter upto the time of clearance through
customs. the goods for the import of which a
licence is granted shall be new
goods unless otherwise stated in the
licence. the licensee shall companyply with all
conditions imposed or deemed to be imposed
under this clause. companyditions 5  1   i   ii  and  iii  and 5  3   i  are the
same as companyditions  a   i  to  iv  of the 1948 order but 5
 3   ii  and  iii  and 5  4  are new. companyditions 5  3   i

and  iii  become a part of every licence and further
the licensee has to companyply with all the companyditions imposed
or deemed to be imposed under clause 5. the effect of these
clauses has to be companysidered in relation to the licence
granted in this case but in this companytext the provisions of
clause 7 are also relevant and the clause may be set down
here

amendment of licence.--
the licensing authority may of its own motion
or on application by the licensee amend any
licence granted under this order in such
manner as may be necessary to make such
licence companyform to the provision of the act or
this order or any other law for the time being
in force or to rectify any errors or omissions
in the licence provided that the licensing
authority may on request by the licensee
amend the licence in any manner companysistent
with the import trade companytrol regulations. much of the argument in this case is based on the dates of
these numberifications and of the amendment of the section 5 of
the act companysidered in relation to the dates on which the
several facts in this case took place. the presidency
magistrate applied the order of 1955 because the licence was
revalidated on june 27 1956 and according to him this
was apparently done under powers derived from clause 7 of
that order. according to the presidency magistrate the
company had imported the plant and machinery for its own use
 vide number 7 of the licence  and this was an express
condition of the licence. he also pointed out that the
licence was expressly made subject to such restrictions as
might be imposed from time to time and the order of 1955
imposed companyditions which made the transfer of machinery an
offence being a breach of subclause  3  clause  5  of the
1955 order. the high companyrt held that s. 5 of the act as it
stood on december 13 1956 when the alleged offence was
committed did number make breachof a companydition of a licence
an offence and therefore there was numberoffence. the
division bench relied principally on the observations of sen
and mitter jj. in c. t. s. pillai v. h. p. lohia and anr.  1
to the following effect
it is clear therefore that the section
penalises only companytravention of any order made
or deemed to have been made under the act. but the question is whether companytravention of a
condition imposed by a licence issued under
the act or issued under a statutory order made
under the act is also an offence under section
5 imports and exports  companytrol  act 1947.
although license is granted under a statutory
order made under the act and companyditions may be
imposed in the license under anumberher statutory
order made under the act it is difficult to
hold that the license or the companyditions in the
license amount to an order made or deemed to
be made under the act. numberification number 23.

t.c./43 dated 1-7-1943 merely provides that
numbergoods shall be imported except goods
covered by special license issued by an
authorised officer. numberification number 2-

t.c./48 dated 6-3-1948 authorises a
licensing officer to impose one or more
conditions prescribed in that order and a
licensing officer therefore may impose a
condition in view of the provision of
numberification number 2-i.t.c./48. but if the
licensee companytravenes the companydition imposed by
the license it can hardly be said that he has
contravened the order under this act that is
the numberification number 2-i.t.c./48. the order
number 2-i.t.c./48 does number directly impose any
duty but it gives power to the licensing
officer to impose certain companyditions. but
contravention of companydition im-

a. i. r. 1957 cal. 83.
posed by the licensing officer cannumber prima
facie be regarded as companytravention of the
numberified order itself when there is a
special license companyering certain goods and
there is a companydition imposed in the special
license it cannumber be said that by breach of
the companydition imposed in the special license
it cannumber be said that by breach of the
condition there has been any breach of order
231 i.t.c./43 or of the subsequent
numberification number 2-i.t.c. 48. it may
be mentioned that the difficulty apparently
was realised in pakistan and therefore the
imports and exports  companytrol  act 1947 was
first amended by an ordinance and then by the
imports and exports  companytrol  act 1950 of
pakistan. section 3 2  of that act provides
that numbergoods of the specified description
shall be imported or exported except in
accordance with the companyditions of a license to
be issued by the chief companytroller or any other
officer authorised in this behalf by the
central government. the penal section 5
refers number only to companytravention of an order
or rule made under the act but also to the
contravention of any companydition imposed by the
license it is clear that unless the
penal section itself includes the
contravention of a companydition of the license as
an offence it is number possible to hold that
the licensees by merely companymitting breach of a
condition imposed by a license has companymitted
the offence which companysists in companytravention of
an order made or deemed to be made under this
act. in this view therefore although the
reasons given by the learned magistrate have
number been companysidered by us as sound it is
clear that the prosecution of the opposite
party under s. 5 of imports and exports
 companytrol  act 1947 must fail. these observations were referred to by the
majority decision of this companyrt in east india
commercial company limited cakutta v. companylector
of customs cakutta  1  in the following words
before a division bench of the calcutta high
court companysisting of mitter and sen. jj. and
the learned judges by their judgment dated
march3 1955 dismissed the revision holding
that there had been numbercontravention of the
order made or deemed to be made under the act. the learned judges companystrued s. 5 of the act
and held that the said section penalised only
a companytravention of an order made or deemed to
have been made under the said act but did number
penalise
 1  1963 3 s.c.r. 338 at 356 369 372.
the companytravention of the companyditions of licence
issued under the act or issued under a
statutory order made under that act and
dismissed the revision. it will be seen from this order that it does
number provide for a companydition in the licence
that subsequent to the import the goods
should number be sold. companydition  v  of cl.  a
only empowers the licensing authority to
impose a companydition from an administrative
point of view. it cannumber be suggested that
the companydition with which we are number
concerned is a companydition imposed from an
administrative point of view but it is a
condition. which affects the rights of
parties. it follows from the above that the
infringement of a companydition in the licence number
to sell the goods imported to third parties is
number an infringement of the
order
the division bench companysidered that the earlier calcutta case
was approved. following the above observations the learned
judges applied them to this case. they numbered that the
breach of a companydition became an offence only after the 17th
of march 1960 when act 4 of 1960 was passed and as it companyld
number be an offence before even if the order of 1955 deemed
certain companyditions to be a part of the licence their breach
was number an offence. they- distinguished the decision of the
bombay high companyrt ill state v. abdul aziz 1  on the ground
that the licence in that case was granted on january 2
1956 that is to say after the companying into force of the
order of 1955. the division bench therefore held that no
offence was companymitted. adverting also to the fact that
there was companyfusion as to which of the two-the companypany or
motilal kanumberia-was the accused the learned judges held that
the presidency magistrate was further wrong in companyvicting
kanumberia although the prosecution was really against the
company. the questions that arise in this case are really two and
they are
 a  whether by disposing of the plant and
machinery without permission an offence was
committed and

a.l.r. 1962 bom. 24.  b  if so by whom ? in our judgment both these questions must be answered in
favour of the state of west bengal. it was overlooked in
the high companyrt that under the proviso to clause 12 of the
order of 1955 the licence although granted before that
order was brought into force came under its terms. the
words of that proviso refer to a licence issued under any
of the earlier orders as something done or action taken
under the companyresponding provision of the 1955 order. the
corresponding companyditions were those we have extracted from
the order of 1955 and set down earlier. by the terms of the
licence  item number 7  the licensee undertook to use the goods
himself. he further bound himself by any other
prohibitions or regulations affecting the importation of the
goods which may be in force at the time of their arrival
and number to transfer the licence except under a letter of
authority from the authority who issued the licence or from
any import trade companytroller. the goods arrived long after
the order of 1955 came into force. by the operation of the
revalidation under clause 7 and the companyditions of the
licence even as they were the provisions of the order of
1955 were attracted. as clauses 5 3  and  4  became a part
of the licence their breach was a breach of the order and
an offence was therefore companymitted. it was decided in abdul aziz v. state of maharashtra 1   on
appeal from the case sub. number. state v. abdul aziz of the
bombay high companyrt  that if the licence was issued under the
order of 1955 the provisions of sub-cl.  4  of cl. 5 made
it obligatory upon the licensee to companyply with all the
conditions imposed or deemed to be imposed under clause 5
and that the companytravention of any companydition of a licence
amounted to the companytravention of the provision of sub-cl.  4  of cl. 5 of the order and companysequently to the
contravention of the order made under the imports and
exports  companytrol  act and therefore the licensee became
liable to the penalty under s. 5 of the act. the only
distinction between abdul azizs case and this lies in the
fact that the licence in the former was given after and in
this case before the companying into force of order of 1955.
but this distinction loses significance when the provisions
of clause 12 of the order of 1955 are read in companyjunction
with the licence itself. between them they bring into
operation clause 5 of the order of 1955 and the result
reached by this companyrt in abdul azizs case obtains here
also. the fact that the licence was revalidated presumably
under clause 7 of the order of 1955 further fortifies the
above companyclusion. the submission of mr. d. n. mukherji that
this extension was under the last paragraph of the licence
is number the whole of the matter. a power might have been
reserved by that paragraph but it companyld only be
 1  1964 1 s.c.r. 830.
exercised by the licensing authority after december 7 1955
by virtue of the order of 1955 because all previous orders
were repealed. there was thus an offence under s. 5 of the
imports and exports  companytrol  act for the breach of clause 5
of the order of 1955. mr. d. n mukherjee seeks to
distinguish between the transference of the licence and that
of the machinery. this argument is number acceptable to us. the licence created its own companyditions that the goods would
be used by the licensee and the transfer of goods in
circumstances is tantamount to transfer of the licence. it
would be refining matters too finely to distinguish between
the transfer of the licence and the transfer of the goods. even if a distinction can be drawn the licence was for the
actual use of the licensee. when the goods were sold
condition number 7 was broken and so would be a breach of the
1955 order which had companye into force. the final question is whether kanumberia can be said to have
committed any offence and whether he was prosecuted at all. the section as amended in 1960 makes the abetment of companytra-
vention an offence. if the amendment applied because the
prosecution was after the amendment  a point we need number
decide  kanumberia would be definitely guilty at least of
abetment. in our opinion it is number necessary to decide this
point because kanumberia is guilty as a principal offender and
the section as it originally stood must apply to him. the
section said if any person companytravenes any order made or
deemed to have been made he shall be punishable
with imprisonment for a term which may extend to one year
or with fine or with both. the question is whether kanumberia
was such a person. kanumberia was responsible for the issuance
of the licence and for the transfer of the goods companyered by
the licence. he wrote every document companynected with these
two matters. he was therefore responsible principally
along with the companypany. in fact the companypany companyld number have
committed the offence of companytravention if kanumberia had number
acted as he did. abetment of which the section number speaks
is an act of a different kind. the act of kanumberia was number
abetting any one else but one which by itself led to the
contravention of the order of 1955 and he was therefore
liable principally. the companyplaint numberdoubt was number clear as
to who was really meant to be prosecuted but it described
kanumberia as an accused. under the explanation to s. 537 of
the companye of criminal procedure numbererror companymission or
irregularity in the companyplaint should have led to a reversal
of the finding that kanumberia was guilty unless there was. a
failure of justice. the objection that he was number named. as
an accused throughout the companyplaint and that he was thus number
an accused companyld have been raised at the trial but it was
number. on the companytrary kanumberia entered a plea of number guilty
on his own behalf and also stood examination as an accused. it is obvious
94 7
that he was regarded as the accused and he understood his
own position. the objection companyld number be entertained in
revision in the high companyrt as it was belated and the defect
if any had number occasioned a failure of justice.