civil appellate jurisdiction civil appeal number 1923 of
1968.
appeal by special leave from the award dated march 11 1968
of the viith industrial tribunal west bengal calcutta in
case number viii-287 of 1966 published in the calcutta gazette
dated april 18 1968.

n. mukherjee for the appellant. the respondent did number appear. the judgment of the companyrt was delivered by
grover j. this is an appeal by special leave from the award
of the seventh industrial tribunal west bengal. the appellant companypany is a unit of the engineering industry
in west bengal having three factories in various parts of
calcutta. the companypany employs about 1650 workmen in all
these factories. according to the appellant it is solely
engaged in the production of brakes and signalling equipment
for the railways. its products it is claimed are
essential for the smooth working of the railways which are
its sole customers. in order to ensure smooth production
and uninterrupted flow of supply the government of west
bengal declared the appellant to be a public utility service
in exercise of the power companyferred by sub-clause  vi  of
clause  c  of s. 2 of the industrial disputes act 1947 and
also as essential service under the defence of india
rules. it is said as a unit of engineering industry the
appellant was a party to certain omnibus major awards made
in 1958 and the earlier awards of 1949 and 1950. in these
awards the service companyditions including leave and holidays
of the workmen were standardised. the appellant has been
granted leave and holidays as per those awards and in
accordance with the provisions of the factories act the
shops and establishment act and the employees state
insurance act. the paid holidays which are being granted
are ten in a year. there used to be a system in the
appellant companypanys establishment of granting nine days
unpaid festival holidays in addition to the paid festival
and other holidays. it is pointed out that in numberother
major industry in the region this system of unpaid festival
holidays is being followed any longer. at the instance of the appellant-company the government of
west bengal referred the following issue by an order dated
june 7 1966 to the industrial tribunal for adjudication. curtailment of unpaid festival holidays. in the written
statement which was filed by the appellant it was stated
in para. 8 that the companypany allows nine festival unpaid
holidays and the companytinuance of the said holidays would number
only entail loss of wages to the workmen but also loss of
production and would prejudicially affect the companyntrys
econumbery. it was also asserted that the system of granting
unpaid holidays was numberlonger being followed in the
engineering industry. moreover other holidays enjoyed by
the workmen along with the workmen of other similar units
were far in excess of what prevails in other companyntries. the union filed a written statement on behalf of the
workmen. in reply the position taken up was that the
assertion of the company-
pany that the nine unpaid holidays should be discontinued
was in clear disregard of the principle and practice
followed so far in the matter of giving benefits in the
industrial companycerns. it was said that the trend of the
decisions of the industrial tribunals in respect of major
engineering companycerns has always been against the curtailment
of the existing facilities and that the management of the
appellant-company had made an unfair attempt to curtail
those benefits relating to unpaid festival holidays. the
main ground given was that in the interest of industrial
peace production and better relations between the workmen
and the management the workmen should be kept companytented. any attempt to curtail the existing benefits according to
time-honumberred practice would provoke discontent and labour
unrest. each side examined one witness p.w. 1 gobind day who
appeared on behalf of the appellant supported the
assertions made in the written statement filed on behalf of
the appellant. in other words he stated that 19 holidays
were being given to the workers at present out of which ten
were paid holidays and the rest without pay. ten festival
holidays were allowed on the basis of the award made by the
tribunals. he admitted in his cross-examination that in
bengal holidays for certain days like netajis birthday or
for religious festivals were companysidered very essential. p.w.1 who appeared on behalf of the workers and who was
the working president of the union at the time he gave
evidence merely company tented himself by saying that nine
unpaid festival holidays had been enjoyed by the workers
since he joined the factory and prior to that time. according to him even on festival holidays workers
attended the factory and worked there and drew wages. over-
time wages were paid at the rate of 150 of the basic wages. the industrial tribunal does number appear to have given any
substantial reasons for companying to the companyclusion that the
unpaid holidays should number be curtailed. according to it
there was numberevidence to show to what extent the railways
which were the sole customers of the companypany depended on
the companypany to meet their requirements. the tribunal
proceeded to say that the companypany might be solely engaged in
the production of signalling equipment but that was number
sufficient to show the nature and extent of the dependence
of the railways on the supplies of the companypany. the
representative of the companypany had argued that because the
number of the holidays was large the production was
suffering and the companypany was unable to meet the demands of
the railways in time. the tribunal however thought that
in the absence of any evidence to that effect it companyld number
be held that the production was number adequate or was
suffering because of the number of holi-
days for the workers. this is how the tribunal reasoned in
the matter
in my humble opinion without reducing the number of
important festival holidays of any companymunity in india-which
is the home of different companymunities and religions the
number of working holidays can be increased as a
compensatory measure by companyverting a good many sundays to
working days. i think this is quite a feasible proposition
and can be offered as a suggestion to those who take the
view that as festival and religious holidays are quite large
in number they should be reduced without reference to the
feelings of the affected religious group or companymunity. but
then this is too wide and too large a question for my
embarkation and perhaps such views will number find favour with
the west oriented intellect and so-called companymopolitan
outlook. anyway that i say is that there is numbergood ground
to cut down the number of festival holidays simply because
the number of overall holidays is large. the tribunal
appears to have been impressed by the companytention raised on
behalf of the workmen that they had enjoyed the facilities
for a long time. it appears that the tribunal was wholly oblivious of the
present day companyditions and the necessity for increased
production particularly in the matter of utility companypanies
and the companypanies that are producing goods for essential
services like those carried on by the indian railways. this
court has observed on more than one occasion that it is
generally accepted that there are too many public holidays
in our companyntry and that when the need for industrial
production is urgent and paramount it may be advisable to
reduce the number of such holidays in industrial companycerns. indeed it cannumber be disputed that a necessary step in the
direction of increasing the companyntrys productivity is the
reduction of number of holidays. see pfizer p limitedbombay

the workmen 1  and associated cement staff union and
anumberher v. associated cement companypany and others.  2  in
pfizers case the holidays. which were being granted were
reduced to ten from the number which the workers were
enjoying previously in accordance with those sanctioned
under the negotiable instruments act i.e. 16 holidays.  1  1963 supp. 2 s. c. r. 627 651.  2  1964 1 l

j. 1215. 8 34
on giving the matter careful companysideration we find no
reason or justification for unpaid holidays number being
curtailed in the present case. all the companyditions which are
necessary have been satisfied and the appellant is carrying
on the kind of work which requires efficiency and increased
production.


civil appellate jurisdiction civil appeal number 1776 of
1969.
appeal by certificate from judgment and order date may 3
1968 of the high companyrt of delhi at new delhi in civil writ
number 135-d of 1960.

k. aiyar s. p. nayar and r. n. sachthey for the
appellants. rameshwar nath for the respondent. the judgment of the companyrt was delivered by
khanna j. this appeal on certificate by the lt. governumber
delhi and two others is directed against the judgment of
delhi high companyrt whereby it accepted the petition under
article 226 and 227 of the companystitution of india filed by
the respondent companypany and directed the appellants to decide
the respondents application for amendment of registration
certificate in the light of observations made by the companyrt. the respondent companypany is a registered dealer under the
central sales tax act 1956  hereinafter referred to as the
act  and deals mainly in vegetable products  vanaspati . the respondent was granted registration certificate under
the central sales tax  registration and turnumberer  rules
1957. on december 11 1958 the respondent applied to the
sales tax officer for amendment of the registration
certificates so as to include therein tin plates or tin
sheets under sub-section  3  of section 8 of the act on the
allegation that those goods were used by the respondent for
packing its vegetable products for sale. the said appli-
cation was rejected by the sales tax officer on the ground
that the goods in question were declared goods and as such
their purchase on the strength of registration certificate
could be allowed only if they were to be resold in the form
in which they had been purchased. revision petition filed
by the respondent against the order of the sales tax officer
was dismissed by the companymissioner of sales tax on the ground
that tin plates or tin sheets were number declared.goods or
goods of special importance. on the other hand according
to the companymissioner those goods companyld fall in the category
mentioned in clause  c  of sub-section  3  of section 8 of
the act provided they were either companytainers or materials
used for packing of goods for sale. the companymissioner
further held that the goods in question were number companytainers
as they had to undergo manufacturing process before they
could be used as companytainers. the goods were also held number
to fall in the second category of being materials used for
packing vegetable oil because according to him the word
packing was invariably used for holding solid companytents. he therefore held that tin plates or tin sheets did
number companystitute packing material. further revision filed by
the respondent was dismissed by the chief companymissioner who
agreed with the opinion of the companymissioner. an application
was thereafter filed by the respondent for making a
reference to the high companyrt of the question of law arising
from the order of the chief companymissioner. this application
too was rejected by the chief companymissioner on the ground of
being barred by time. the respondent thereafter moved the
high companyrt for a direction to the chief companymissioner to
refer the question of law formulated by the respondent to
the high companyrt. in addition to that the respondent filed a
petition under articles 226 and 227 of the companystitution of
india for a direction to the appellants to decide the
respondents application for amendment of the registration
certificate in accordance with law. the writ petition was resisted by the appellants. the high
court accepted the writ petition and held that the words of
clause  c  of sub-section  3  of section 8 of the act were
wide enumbergh to companyer the goods in question. according to
the high companyrt it was number necessary that those goods should
be capable of being used directly for the purpose of
packing. it was quite enumbergh if the intention of the dealer
was to acquire them in order that they might be used for
packing of. goods for sale even if in that process of
adapting them for such use they bad to undergo some change
in shape or form. it was further observed that the
respondents object was to. companyvert the tin sheets and tin
plates into tin companytainers with a view that the same might
be filled with the vegetable oil products to be sold to
different parties. before proceeding further we may set out sub-section  1
and clause  c  of sub-section  3  of section 8 of the act

every dealer who in the companyrse of inter-
state trade or companymerce-
 a  sells to the government any goods or
 b  sells to a registered dealer other than
the government goods of a description referred
to in sub-section  3
shall be liable to pay tax under-this act
which shall be three per cent of his turnumberer. the goods referred to in clause  b  of
sub-section
 1
 b
 c  are companytainers or other materials
specified in the certificate of registration
of the registered dealer purchasing the goods
being companytainers or materials intended for
being used for the packing of goods for sale
mr. aiyar on behalf of the appellants has argued that tin
sheets and tin plates are number companyered by clause  c  of sub-
section  3  of section 8 of the act reproduced above as
those goods companystitute neither. companytainers number materials
intended for being used for packing of goods for sale. mr.
ramesliwar nath on behalf of the respondent has number disputed
that tin sheets and tin plates do number companystitute companytainers
but according to him they fall in the category of
materials intended for being used for packing of goods for
sale. there is in our opinion companysiderable force in this
sub-mission of mr rameshwar nath. the materials referred
to in clause  c  according to its plain language should be
such as are intended for being used for the packing of goods
for sale. once the intention of using the materials for
packing of goods for sale is proved the requirements. of
the clause would be satisfied. the high companyrt has found
that the respondent purchased tin sheets and tin plates from
dealers in bihar and elsewhere with a view to companyvert those
sheets and plates into tin companytainers in order to fill the
same with vegetable oil products for being sold to
different parties. this finding of the high companyrt has number
been questioned before us. it has however been urged on
behalf of the appellants that as tin sheets and tin plates
cannumber be used by the respondent unless they are companyverted
into companytainers the respondent cannumber invoke the benefit of
clause  c  of sub-section  3  of section 8 of the act. we
find it difficult to accept this companytention. the fact that
tin sheets and tin plates have to be subjected by the
respondent to the process of cutting and moulding into tin
containers would number take them out of the category of
materials intended for being
used for the packing of goods for sale the cutting and
moulding is essential for putting the tin sheets and tin
plates into shape with a view to adapt them for actual user. the process of cutting and moulding does number alter the
nature of the materials intended for being used for packing
of goods for sale it only facilitates the actual user for
packing. we are also of the view that packing materials are necessary
number only for solid articles but also for those in liquid and
semiliquid form. according to observations on page 22 of
encylopaedia britannica vol.17 1968 edition in a society
that produces foods-stuffs and manufactured articles in one
locality and uses them in anumberher a wrapping or companytainer
is necessary during storage transport and sale. the
functions of a package are  1  to companytain a companyvenient-
sized unit or amount of a product  2  to protect it in
transit  3  to aid its safe delivery to the companysumer and
 4  in some cases to display the product and promote its
sale or to act as a dispenser of it. originally instituted
to produce simple companytainers the packing industry has
expanded to meet the demands for processed and preserved
foods rather than seasonal crops and to distribute
increased varieties of manufactured items. packing reflects
developments in other industries especially petrochemicals
and plastics whereby new materials and methods of
construction have been provided for companytainers. it has
further been observed that cans both tin and aluminium
are number used for ready-cooked products brewery products
soft drinks and many oils and semisolids.


original jurisdiction writ petition number 108 of 1969.
petition under art. 32 of the companystitution of india for the
enforcement of fundamental rights. k. sen and naunit lal for the petitioners. k. daphtary n. s. bindra and r. n. sachthey for
respondents number. 1 and 2.

c. mathur and p. n. tiwari for respondents number. 7 to
9 12 13 19 to 2127 to 29 33 34 41 47 49 57 to 59
63 64 67 68 70 110 to 113 115 117 118 121 to 124
128 130 l23 134 136 142 145 146 157 164 174 182
186 198 219 232 to 236 240 245 to 250.
the judgment of the companyrt was delivered by
grover j.-this petition under article 32 of the
constitution illustrates how an attempt has been made to
circumvent
8 34
the law declared by this companyrt in triloki nath anumberher v.
state of jammu kashmir others 1  by which the st-ate
policy of reserving 50 of the vacancies among the teachers
in the employment of the respondent state for the muslims of
kashmir and out of the remaining 50 40 for the jamvi
hindus and 10 for others including kashmiri pandits was
struck down as companytrary to the companystitutional guarantee
under art. 16.
the petitioners who are 10 in number are in the service
of the education department of the state of jammu kashmir. according to the petition petitioner number 1 joined service
in 1952 as a teacher in the government high school poonch. he had passed the bachelor of teaching examination and was
given the grade of rs. 80-8-200. this grade which was of a
number-gazetted post was later revised sometimes before 1964 to
rs. 150-500. the gazetted post carried a grade of rs. 300-
600 petitioner number 2 entered service of the erstwhile state
of jammu kashmir in 1943 as teacher in the government
school tregham. he later on passed the examinations of
bachelor of teaching and the master of arts and was selected
in july 1968 for teaching in the higher secondary school. petitioners 3 to 10 were trained graduates holding degrees
of bachelor of education. petitioners 34679 and 10 had
also passed the master of arts examination and with the
exception of petitioner number 10 were selected for teaching
in higher secondary schools in july 1968.
all the teachers and other officers of the education depart-
ment of the state were governed by the jammu kashmir civil
services  classification companytrol and appeals  rule 1956
which were promulgated on june 14 1956. rule 9 relates to
first. appointment to a service or class. according to rule
19 in making the appointment to a service or class
reservation may be made in favour of any backward class
which in the opinion of the government is number adequately
represented in the services. rule 24 dealt with seniority. rule 25 to the extent it is material reads
promotions  1  all promotions shall be made
by the appointing authority. promotions to a service or class or to a
selection category or grade in such service or
class shall be made on grounds of merit and
ability and shall be subject to the passing of
any test that government may prescribe in this
behalf seniority being companysidered only where
the merit and ability are approximately equal.  1  1969 1 s.c.r. 103. 8 3 5

all other promotions shall be made in
accordance with seniority and subject to any
test or special qualifications prescribed by
government unless-
 a  the promotion of a member has been with-
held as a penalty or
 b  a member is given special promotion for
conspicuous merit and ability. articles 14 and 16 of the companystitution were made applicable
to the state of jammu kashmir in 1954. rule 19 is stated
to have been abrogated in the year 1958. but in giving pro-
motions to the teachers in the gazetted cadre respondents 1
and 2 adopted the following basis which will be called the
communal policy hereafter -
 1  50 of the vacancies were filled from
among the muslims of the entire state
 2  40 out of the remaining 50 vacancies
were filled by jamvi hindus  hindus from the
jammu province of the state majority of whom
are dogras  and
 3  the remaining 10 of the posts were
given to others including kashmiri pandits. this was purported to be done on the ground that muslims of
the entire state and the hindus of jammu province
constituted backward classes for the purpose of
employment. in december 1965 triloki nath and shambu nath the present
petitioners 2 and 4 filed a writ petition in this companyrt. in
all 81 respondents were impleaded which included the present
respondents number. 38 to 107. in that petition it was
alleged that the companymunal policy of promoting teachers to
the gazetted cadre was number disclosed in any order made by
the state but had been arrived at on the footing of the
recruitment by promotion made to the gazetted post of
teachers from time to time. the promotions had been made on
the basis of merit and seniority but purely on the ground of
religion caste and place of birth. this companyrt called for a
report from the high companyrt on the question whether the
muslims of the entire state of jammu kashmir and the
hindus of the jammu province companystituted backward class in
the sense explained in m. r. balaji ors. v. the state of
mysore 1  and also whether they were number adequatly re-
presented in the services of the state.  see triloki nath
tiku anr. v. state of jammu kashmir ors.  2   after
the report was received it was found that the high companyrt did
number record its
 1  1963 suppi. i s.c.r. 439.  2  1967 2 s.c.r.265. opinion on the evidence. but this companyrt proceeded to give
its decision on the material before it. this is what was
observed at page 105  1969  1 s.c.r. 1031 by shah j.
article 16 in the first instance by- cl.  2
prohibits discrimination on the ground inter
alia of religion race caste place of birth
residence and permits and exception to be made
in the matter of reservation in favour of
backward classes of citizens. the expression
ward class is number used as synumberymous with b
caste or back-ward companymunity. the members
of an entire caste or companymunity may in the
social econumberic and educational scale of
values at a given time be backward and may on
that account be treated as a back ward class
but that is number because they are members of a
caste or companymunity but because they form a
class. in its ordinary companynumberation the
expression class means a homogeneous
section of the people grouped together because
of certain likeness or companymon traits and who
are identifiable by some companymon attributes
such as status rank occupation residence in
a locality race religion and the like. but
for the purpose of art. 16 4  in determining
whether a section forms a class a test solely
based on caste companyunity race religion sex
descent place of birth or residence cannumber be
adopted because it would directly offend the
constitution. it was pointed out that numberformal order making a provision
for reservation of appointment to posts in favour of any
backward class of citizens had been produced there were a
number of government orders by which the promotions had been
made according to the companymunal policy. there was no
reference in any of the orders to selection of officers on
the basis that they belonged to backward classes. it was
held that in effect the companymunal policy was number of
reservation of some posts it was a a scheme of distribution
of all the posts companymunity-wise. such distribution made in
implementation of the so called policy was companytrary to the
constitutional guarantee under art. 16 1  and  2  and was
number saved by clause  4 . the promotions granted to
respondents 3 to 83 in that petition were declared void it
was left open to the state to devise a scheme companysistent
with the companystitutional guarantee for reservation of
appointments to posts or promotions in favour of any
backward class of citizens which in the opinion of the
state was number adequately represented in the services. it is companymon ground that numbersuch scheme as was envisaged was
devised. it has however been stated in the present return
83 7
that certain rules have been promulgated by a numberification
number.r.o. 460 dated august 19 1969. in the meantime the
officers companycerned of the education department of the state
thought of an ingenious device of giving ostensible effect
to the decision of this companyrt. those teachers who were
respondents in the previous writ petition and whose protions
became illegal in view of the pronumberncement of this companyrt
were ordered to be adjusted in number-gazetted cadre of which
the grade was rs. 150-500. they were allowed to work
against the posts they were holding prior to their
reversion on temporary basis. numerous companyies of the
orders which have been annexed to the petition show that
this was the companymon pattern that was followed. a new
numberenclature was evolved for the post of head masters. they were called teachersin-charge. they were to get the
same salary which they were getting when they were in the
gazetted cadre of rs. 300-600. for instance if a was
working as head master in the gazetted post and was drawing
a salary of rs. 300/- per month according to. the scale of
rs. 360-600 he was stated to have been adjusted in his own
grade and on his own pay i.e. in the grade of rs. 150-500.
he was still to get a salary of rs. 350/- which he would
number have got if he had originally number been promoted to the
gazetted cadre. in other words although such a teacher was
brought into the number-gazetted cadre from the gazetted grade
his emoluments and his posting as head of an institution
were number affected. it is number disputed that ordinarily he
could number have been appointed to that post being far junior
to the petitioners according to the seniority list of the
number-gazetted cadre to which originally he and the
petitioners belonged. it has been stated somewhat tamely in
the return of respondents 1 and 2 that when these teachers
who were affected by the decision of this companyrt had been
promoted to the gazetted cadre number only seniority but merit
had also been taken into companysideration. but it has number been
denied and this fact has been admitted before us in the
course of arguments that but for the so called companymunal
policy these teachers would number have been-promoted to the
gazetted cadre eventhough merit and other factors had
entered into their promotion inter-se. as regards the other
respondent teachers who did number figure in the earlier
petition they were all promoted to the gazetted cadre prior
and subsequent to the previous decision in companyplete defiance
of the law laid down by this companyrt. such a companyrse has been
sought to be justified on the tenuous ground that they were
number parties to the previous petition and therefore their
case.-. would number be governed by the decision given in that
petition. it may be observed immediately that such a
position is wholly untenable and misconceived. the judgment
which was delivered did number merely declare the promotions
granted to the respondents in the petition filed at the
previous stage as unconstitutional but also laid down in
clear and unequivocal terms that the distribution
of appointments posts or promotions made in implementation
of the companymunal policy was companytrary to the companystitutional
guarantee of article 16. the law so declared by this companyrt
was binding on the respondent state and its officers and
they were bound to follow it whether a majority of the
present respondents were parties or number to the previous
petition. in para 20 of the petition instances have been given which
show that in spite of the judgment of this companyrt certain
teachers who had been promoted to the post of head masters
are still head masters though they are very much below
kashmiri pandit teachers in the list of seniority. for
instance mohd. yusuf masoodi who was- respondent number 52 in
the previous writ petition had been promoted to the post of
had master numberhatta. even after the judgment he was
continuing as head master although he was placed at number 243
in the seniority list of 1961. messrs. deva kaul and
dwarika nath were 68 and 76 respectively in that seniority
list were working as teachers under him in the same school
masoodi was drawing a salary above rs. 350/per month whereas
the two kashmiri pandit teachers were drawing only rs. 300/- though both of them were senior to him and were number in
the same grade of rs. 150-500 to which masoodi is stated to
have been reverted. similarly those teachers who were given
promotions after the appointments on companymunal basis had been
struck down had been promoted following the same rule. in
para 22 an instance is given of ghulam mohiuddin wani who
had been promoted as teacher-in-charge high school
shogapor. it is stated that his name did number appear in the
seniority list whereas triloki nath kaul was much senior to
him but was working as a teacher under him although the
salary which kaul was getting was rs. 250/- per month and
the salary which wani was drawing was only rs. 210/- per
month. in the return respondents 1 and 2 have number
contradicted the facts stated in para 20 of the petition but
have taken certain pleas of general nature and of legal
character. similarly with regard to para 22 it has been
stated inter alia in the return
as regards the individual cases referred to
in para 22 of the writ petition the averments
and submissions made therein are misconceived
and unwarranted and misleading. our attention has however number been invited to any facts or
particulars relating to the aforesaid instances in the
return which would throw doubt on the companyrectness of the
instances given in the petition in paras 20 and 22.
according to the petitioners the present respondents 3 to 27
were number parties to the previous proceedings but they were
pro-
8 39
moted to the gazetted grade in an officiating capacity
though they were junior to petitioner number 1. respondents 38
to 107 were parties to the previous petition and their
promotions were expressly quashed by this companyrt. respondents 108 to 218 were promoted during the pendency of
the writ petition and respondents 219 to 251 were promoted
after the decision of this companyrt in an officiating capacity. it is abundantly clear and this position has number been
controverted that all the promotions which were made of the
respondents who were number parties to the previous petition
were based number purely on merit but were made on account of
the companymunual policy which had been struck down by this
court as unconstitutional. respondents 38 to 107 who were
parties to the previous petition were reverted to the number-
gazetted grade but they were still retained in the posts
which they were holding when they had been promoted to the
gazetted grade although in some cases the numberenclature was
changed from head master to teacher-in-charge. in the
absence of any rules lawfully promulgated for employment of
backward classes promotions companyld be made only in accordance
with rule 25 and there can be numbermanner of doubt that there
was absolute number-compliance with the provisions of that
rule. the promotions thus de of all the respondent-
teachers were illegal and unconstitutional being violative
of article 16 of the companystitution. they have therefore to
be set aside. all the promotions made to the higher posts
or the higher grade pursuant to the companymunal policy would
have to be revised and reconsidered and appropriate orders
must be passed by respondents 1 and 2 with regard to them as
also the petitioners in accordance with law.


criminal appellate jurisdiction criminal appeal number106
of 1980.
from the judgment and order dated 8.1.1980 of the delhi
high companyrt in crl. a. number 137 of 1978.
ms. neeraja mehra and i.k. wadera for the appellants. anil dev singh r.n. poddar and g.d. gupta for the
respondent . the judgment of the companyrt was delivered by
fazal ali j. the appellant in this case was companyvicted
under s. 302 ipc and sentenced to imprisonment for life by
the high companyrt. m e case depends purely on circumstantial
evidence and the trial companyrt after companysidering the evidence
was of the opinion that the prosecution case was number proved
beyond reasonable doubt and accordingly acquitted the
appellant of the charges framed against him. the state filed
an appeal before the high companyrt which reversed the decision
of the trial companyrt and came to the companyclusion that the
appellant had killed his wife by strangulation. hence this
appeal before this companyrt under s. 379 of the companye of
criminal procedure. 1973.
at the very outset we might mention that circumstantial
evidence must be companyplete and companyclusive before an accused
can be companyvicted thereon. this however does number mean that
there is any particular or special method of proof of
circumstantial evidence. we must however guard against the
danger of number companysidering
circumstantial evidence in its proper perspective e.g. where there is a chain of circumstances linked up with one
anumberher lt
is number possible for the companyrt to truncate and break the
chain of circumstances. in other words where a series of
circumstances are dependent on one anumberher they should be
read as one integrated whole and number companysidered separately
otherwise the very companycept of proof of circumstantial
evidence would be defeated. the learned sessions judge seems
to have fallen into this very error. in the instant case
instead of taking all the circumstances together which are
undoubtedly circumstantial and closely linked up with one
anumberher the learned sessions judge has companypletely
misdirected himself by separately dealing with each
circumstance thereby making a wrong approach while
appreciating the circumstantial evidence produced in the
case. let us number recount the circumstances relied upon by the
appellant by giving first a brief summary of the same. the
marriage of the accused and the deceased took place on
december 6 1975 i.e. hardly a year before the date of the
occurrence. after about six months of the marriage the
relations between the two spouses started becoming strained. the evidence clearly shows that the accused neglected the
deceased abused her teased her waxed her and even beat
her. all these things were reported to the relatives of both
sides as a result of which a panchayat had to be called to
bring the two parties together which also was of numberavail. there is further evidence to show that on the night of the
occurrence i.e. between the night of 16th and 17th
numberember 1976 the accused was last seen by some of the
witnesses whose evidence we shall refer hereafter. secondly
it is also proved that the accused left his house in the
morning of 17th numberember 1976 and went to muzaffar nagar and
stayed at his sisters house there and came back to delhi in
the evening of 17th numberember 1976 but instead of staying in
his own house he stayed in venus hotel in paharganj in delhi
under a false and assumed name of vinumber kumar which
according to the evidence was written by him while making
the entries in the hotel register. furthermore it appears that there are some letters
written by the deceased which show the callous and cruel
nature of the accused and his treatment towards her. he
appears to have been companypletely indifferent towards her and
the deceased prayed to her parents for taking her with them
immediately. it is true that despite the companyduct of the
appellant the parents-in-law of the deceased were very kind
to her and tried their best to save the situation but the
appellant was made of such a stern stuff and stubborn nature
that he would number listen to anyone. moreover the evidence further shows that certain
broken bangles and one pair of cufflinks were recovered from
the room where the deceased was strangulated. the medical
evidence also supports that the deceased had died of manual
strangulation. there are some other circumstances which show
the role played by the accused and if we take the
circumstances together the irresistible inference is that
the prosecution has companypletely proved its case. we might observe there that the circumstances which
have been narrated above are so interlinked in the chain of
circumstantial evidence that lt is difficult to truncate
them and the learned sessions judge ought number to have
rejected the circumstances one by one and then acquit the
accused. it is here that the learned sessions judge has
committed a serious error of law. if we read the evidence as
an integral whole the inescapable companyclusion is that
excepting the appellant numberody else companyld have companymitted the
murder. with this preface we number proceed to deal with the
chain of circumstances relied upon by the high companyrt in
reversing the judgment of the trial companyrt and companyvicting the
accused. to begin with as we have said within one year of
her marriage the deceased died during the night of 16th and
17th numberember 1976. a number of prosecution witnesses  pws
5678 and 9  whose evidence has been fully companysidered by
the high companyrt deposed that the appellant had been ill-
treating the deceased and their relations were extremely
strained. this is buttressed by the further circumstance
that a panchayat had been called to resolve the differences
between the two spouses. in this companynection the prosecution
witnesses have spoken thus-
the accused had always been maltreating madhu and
used to say that he will number like to keep madhu
with him. after about 6 months of the marriage a
panchayat was held in bakhtamal dharamshala delhi
for bringing about companyciliation. before the
panchayat the father of the accused had assured
that he will ask the accused to behave better. but
there was numberchange in the attitude of the accused
towards the deceased and the accused was bent upon
leaving the girl.  pw 5 ramesh chand
about 5 or six months prior to the murder of
madhu her father had companyplained to me that the
accused used
to beat her and wanted to leave her. after 2 or 3
days a of that a panchayat was held in bagtamal
dharamshala kucha pati ram before the
panchayat father of the accused had assured that
he will make him under stand and see that the
accused behaved properly in future with madhu.  pw 6 ram kishan dalaya
accused used to beat madhu and we were receiving
many companyplaints in this respect. myself ramesh
chand ganga prasad and madan lal had been companying
to delhi and requesting the accused number to do so. however the behaviour of the accused towards
madhu did number change.  pw 7 chhanu lal
she was married to ram avtar accused  present in
the companyrt. madan lal had started saying after
about 20 or 25 days after the marriage that the
deceased was being beaten and ill-treated by the
accused a panchayat was organised. radhey lal
was also called and he attended the panchayat.   pw 8 ram pal singh
there were strained relations between them for a
long time.  pw 9 gulab chand
right from the beginning accused had been ill-
treating my daughter. she had been writing letters
to me from which i had companye to knumber that she was
number happy and so i came to delhii beseeched the
accused and with folded hands requested him to
behave better with my daughter in the presence of
his father. both of them had assured that numberhing
will happen in future.  pw 12 madan lal
i had gone to attend its companyference at lucknumber
from g 5th to 7th oct. 1976. there chhanu lal
elder brother of madan lal had companyplained to me
that ram avtar accused was ill-treating madhu and
that i should look into this matterthen i told
him that in that case chhanu lal would number have
complained to me. then he assured me that he will
ask the accused to behave properly and there will
be numbercomplaint in future.  pw 13 sohan lal verma
the above extracts from the evidence of various
prosecution witnesses show that the relatives of the two
sides tried their best to bring harmony in the relations of
the accused and the deceased and the father of the accused
had been promised that his son will behave in future in a
proper manner. one outstanding feature of this case is that
while the deceased was fully satisfied with the treatment
received by her from her parents-in-law yet so adamant was
the accused that he would hardly listen or pay any heed to
the advice of his parents. anumberher circumstance which almost companyclusively proves
the case of the prosecution is the evidence of pw 1 shri
krishan avtar according to which the accused was seen by
him on the fateful night between 9 or 9.30 p.m. in his house
and in this companynection he says thus
when i returned at about 9 or 9.30 p.m. i saw the
accused in his house. he was alone in the house at
that time. the room of the accused is situated on
the ground floor while mine is situated on the
first floor when i saw him he was companying
down stairs from the first floor and entered his
room on the ground floor then i
entered the room of the accused where he and his
wife used to sleep together and saw the dead body
of madhu. pw 1 further testifies to the articles found from the
scene of occurrence
ex.p8 is the pair of cufflinkex.p-14 are the
broken pieces of bangles companylected from the floor
of the room. f
pw 2 nathi lal anumberher independent witness says that
at about 12.30 in the night while he was companying from lal
darwaza to his house he saw the accused passing that side
and the accused told him that he had told the chowkidar that
he  appellant  was going away and the door of his house was
open. anumberher witness  pw 3  though declared hostile yet so
far as the relations between the spouses are companycerned
categorically states that the relations between the spouses
were extremely strained. anumberher circumstance which is of great importance and
which seems to have been ignumbered by the learned sessions
judge is that after returning from muzaffar nagar in the
evening of 17th numberember 1976 the accused instead of
staying in his house stayed in
venus hotel in paharganj new delhi under a false and
assumed name of vinumber kumar and made the entries in the
hotel register in his own hand. m is shows the guilty
conscience of the accused. this is proved by ex.pw 14/a
where it has been stated thus
the aforesaid register companytains one entry against
serial number518 dated 18.11.76 recorded at 1.00 a.m.
relating to vinumber kumar indian 23/3 sarafa
bazar muzaffar nagar for business muzaffar
nagar stated to have been made and initialled by
accused ram avtar s o radhey lal r o 2721
chhatta girdhar lal gali arya samaj bazar sita
ram delhi. anumberher intrinsic evidence which proves the case
against the accused companysists of two letters  ext.pw-12a and
12b  written by the deceased to her parents wherein she had
requested her father to take her away as her husband was
ill-treating her. in these letters she had written thus
you  father  take me away from here  he  is
number on speaking terms with me.  ext. pw 12a
there is always a quarrel in the house about me. papa and mummy have been trying to make him
understand.  he  does number eat and drink anything
from my hand and even does number speak to me. whenever i companye across him he scolds me. today
he gave me beating and was about to turn me out of
the house but mummy and pappa pacified him he
further said i do number want to see the face of
this mean girl. furthermore that whatever
khurjawallas have done in my interest is good
 taunt . he says that when i become a widow then
at least they  parents  will companye to take me
away he says that even if god companyes he
will number agree and will number keep me with him at
any companyt you treat this letter as a telegram
and please reach here immediately. i keep weeping
here day and night and mummy also companytinuous
weeping. he would number keep me with him at any companyt
and i also do number want to live here any
more i am weeping while writing this
letter. dear pappa please companye as early as
possible.  ex. pw 12-b
in addition to ext. pw 12-a and 12-b one more letter
was found from the house where the murder took place but
which she companyld number post. in his statement pw 18 kanshi ram s.i. stated that
from the personal search of the accused rs. 5.50 one
ticket from meerut to delhi were recovered and the accused
was also made to put off his shirt and banian and that he
 pw 18  took into police custody the banian of the accused
which had blood stains on the front side. the last piece of evidence which is also important and
which has been companypletely glossed over by the trial companyrt is
the recovery of broken bangles and a pair of cufflinks which
show that during the companyrse of strangulation the deceased
must have put in stiff resistance. in view of the circumstances discussed above it cannumber
be said that the case against the accused has number been
proved. it is number possible for us to companysider the various
chains of circumstances mentioned above in isolation by
divorcing them from the other circumstances which are
closely interlinked with them. this is where the trial companyrt
has gone wrong and has made a fundamentally wrong approach. having regard to the circumstances mentioned above we are
clearly of the opinion that the judgment of the trial companyrt
is number only legally erroneous but also absolutely perverse. in view of the circumstances and the admissions of the
witnesses extracted the case against the accused is proved
beyond reasonable doubt and this is number a case where two
views are reasonably possible. before companycluding we might observe that where
circumstantial evidence companysists of a chain of companytinuous
circumstances linked up with one anumberher the companyrt has to
take the cumulative effect of the entire evidence led by the
prosecution before acquitting or companyvicting an accused.


civil appellate jurisdiction civil appeal number 329
of 1966.
appeal by special leave from the judgment and order
dated october 11 14 1963 of the bombay high companyrt in
appeal number 30 of 1962 from the appellate decree. narsaraju and r.v. pillai for the appellant. s.k. sastri and m.s. narasimhan for respondent number 1. the
judgment of the companyrt was delivered by-
ramaswami j. this appeal is brought by special leave on
behalf of the .plaintiff against the judgment of the bombay
high companyrt dated october 11/14 1963 in appeal number 30 of
1962 from the appellate order of the district companyrt
osmanabad whereby the high companyrt reversed the judgment of
the lower companyrts and declared that the appellant was number
entitled to execute the decree for pre-emption and that the
respondents were entitled to be put in possession of the
properties of which they were dispossessed in the
enforcement of the pre-emption decree. the appellant had obtained a decree for possession of
certain lands in a pre-emption suit he had brought against
the respondents. the decree was made in march 1945 and the
appellant was directed to pay the companysideration of rs. 5000
within six months from the date of the decree on which the
appellant was to be put in possession of the suit lands. in
case of default in depositing the sum within the time the
plaintiffs suit was to be deemed to have been dismissed. the respondents preferred an appeal to the district companyrt
against the decree but the district companyrt companyfirmed the
decree on january 28 1955. the amount of rs. 5000 was
deposited in companyrt by the appellant on december 20 1954
within the time granted in the trial companyrts decree but it
was subsequently withdrawn by him under orders of the companyrt. while dismissing the appeal of the respondents and
confirming the decree for pre-emption the district companyrt
directed the appellant to deposit the sum of rs. 5000 on or
before april 30 1955 and directed the respondents on such
deposit to deliver possession of the properties. there was
also a direction in the decree that in case the amount was
number paid on the due date the suit shall stand dismissed with
costs. the decree was passed in companyformity with o.20 r.14
of the civil procedure companye. the respondents preferred a
second appeal to the high companyrt and
pending disposal of the appeal the respondents prayed for
stay of the execution decree. on march 23 1955 the high
court passed the stay order in the following terms
stay of execution of decree of the lower
appellate companyrt is granted on companydition that
the appellant furnishes security to the extent
of the amount of companyts. the order was received by the trial companyrt on april 19 1955.
the appellant who was directed under the terms of the lower
appellate companyrts decree to deposit the sum of rs. 5000 on
or before april 30 1955 made default in depositing the
amount on that date. he however deposited the amount on
may 2 1955. since the deposit was number made in time
according to the lower appellate companyrts decree an
application was filed along with the deposit stating that
the amount companyld number be paid in time as the appellant fell
ill. the second appeal preferred by the respondents to the
high companyrt was dismissed on october 6 1960 and the pre-
emption decree in favour of the appellant was companyfirmed. thereafter on february 3 1961 the appellant flied a
darkhast for possession of the suit properties. since the
application was within a year of the decree of the high
court a warrant for possession was issued by the executing
court without numberice to the respondents and the appellant
also obtained possession of a portion of the suit properties
under the aforesaid warrant. on february 8 1961 the
respondents filed an application in the executing companyrt for
restitution of the properties taken possession of by the
appellant on the ground that the appellant had defaulted in
depositing the purchase money on or before april 30 1955 as
required by the lower appellate companyrts decree and the
executing companyrt was in error in issuing the warrant for
possession of the suit properties. the application for
restitution was companytested by the appellant on the ground
that the stay order made by the high companyrt in the second
appeal prevented him from acting in accordance with the
terms of the lower appellate companyrts decree and in any case
the high companyrt had dismissed the second appeal and the
decree-holder would get by necessary implication a fresh
starting point for depositing the purchase amount from the
date of the high companyrts decree. the executing companyrt
rejected the claim of the respondents for restitution and
allowed the execution case of the appellant to proceed. against this order of the executing companyrt the respondents
went up in appeal to the district companyrt which dismissed the
appeal and companyfirmed the order of the executing companyrt. the
respondents thereafter took the matter in second appeal to
the bombay high companyrt which differed from the view of the
district companyrt and allowed the appeal. the high companyrt took
the view that there was default on the part of the appellant
in depositing the amount and therefore the appellants
suit stood dismissed automatically and the appellant was number
therefore entitled to possession in enforcement of the pre-
emption decree. the first question arising in this appeal is whether the
high companyrt was right in taking the view that the effect of
the stay order dated march 23 1955 was merely to stay the
delivery of possession by the judgment-debtors and number a
stay with regard to the deposit of purchase price by the
decree-holder. in our opinion the high companyrt was in error
in taking this view. the decree framed under o.20 r. 14
civil procedure companye requires reciprocal rights and
obligations between the parties. the rule says that on
payment into companyrt of the purchase money the defendant shall
deliver possession of the property to the plaintiff. the
decree holder therefore deposits the purchase money with the
expectation that in return the possession of the property
would be delivered to him. it is therefore clear that a
decree in terms of o.20 r.14 civil procedure companye imposes
obligations on both sides and they are so companyditioned that
performance by one is companyditional on performance by the
other. to put it differently the obligations are reciprocal
and are inter-linked so that they cannumber be separated. if
the defendants by obtaining the stay order from the high
court relieve themselves of the obligation to deliver
possession of the properties the plaintiff-decree holder
must also be deemed thereby to be relieved of the necessity
of depositing the money so long as the stay order companytinues. we are accordingly of the opinion that the order of stay
dated march 23 1955 must be companystrued as an order staying
the whole procedure of sale including delivery of possession
as well as payment of price. the effect of the stay order
therefore in the present case is to enlarge the time for
payment till the decision of the appeal. we are further of the opinion that the effect of the
order of the high companyrt dated october 6 1960 dismissing
the second appeal was to give by necessary implication a
fresh starting point for depositing the amount from the date
of the high companyrts decree. the decree of the high companyrt
was dated october 6 1960 and the appellant companyld have
deposited the amount immediately after this date. but the
appellant has deposited the amount on may 2 1955 long
before the date of the high companyrts decree and there is no
default on the part of the appellant in fulfilling the terms
of the pre-emption decree. in the present case when the
high companyrt dealt with the second appeal filed by the
respondents the time limited by the trial companyrt for making
the deposit had expired. it was open to the respondents to
press this point in the second appeal and for the high companyrt
to decide that the time having expired it was number open to
the plaintiff to make the deposit and there was numberhing
before the
high companyrt for decision. it was equally open to the high
court to dismiss the appeal and expressly extend the time
for making the deposit. when the high companyrt refrained from
following the first companyrse and companyfirmed the trial companyrts
decree what was its intention ? surely it wanted to give
the plaintiff an effective decree in his favour. if so we
are justified in holding that the high companyrt intended to
exercise its power of extending the time for making the
deposit and incorporated in its decree the relevant
provisions of the trial companyrts decree. that is to say
this is a case in which we must hold that a fresh starting
point is implied in the decree of the high companyrt in the
second appeal. the view that we have expressed is borne out
by the decision of the bombay high companyrt in satwaji
balajiray deshamukh v. sakharlal atmatarnsher 1 . in that
case the plaintiff brought a suit to recover possession of
property as purchaser from defendants 1 to 6 and to redeem
the mortgage of defendant 7. the first companyrt having
dismissed the suit the appellate companyrt on plaintiffs
appeal passed a decree directing the plaintiff to recover
possession on payment to defendants 1 to 6 of a certain sum
within six months from the date of its decree and then to
redeem defendant 7 and on the plaintiffs failure to pay
within six months from the date of the decree he should
forfeit his right to recover possession. all parties being
dissatisfied with the decree the plaintiff preferred a
second appeal to the high companyrt and the two sets of
defendants filed separate sets of cross objections. the
high companyrt companyfirmed the decree and the plaintiffs second
appeal and the defendants cross objections were dismissed. within six months from the date of the high companyrts decree
the plaintiff deposited in companyrt the amount payable by him
and applied for execution. defendant 7 companytended that the
plaintiff number having companyplied with the terms of the decree
of the first appellate companyrt his right to recover
possession in execution was. forfeited. the lower companyrts
upheld the defendants companytention and dismissed the
darkhast. on second appeal by the plaintiff the high companyrt
reversed the decree of the lower companyrt and held that the
time for executing a decree nisi for possession ran from the
date of the high companyrts decree companyfirming the decree of the
lower companyrt for what was to be looked at and interpreted
was the decree of the final appellate companyrt. there is also
a decision to the similar effect in sita v. ramnath 2 . for
the reasons already given we hold that the decree of the
high companyrt in second appeal should be companystrued in the
present case as affording by implication a fresh starting
point to the plaintiff for making payment to the companyrt. for the reasons expressed we hold that this appeal
should be allowed the judgment of the bombay high companyrt
dated october

i.l.r. 39 bom. 175.  2  i.l.r.