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TMI Blog1953 (8) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Criminal Appeal No. 532 of 1952 was prosecuted for offences under Sections 235 and 243, Indian Penal Code. The First Assistant Sessions Judge, Madurai, acquitted him, and, from that acquit- tal also, the State has preferred an appeal. Mr. Vasantha Pai, the learned counsel for the respondents in Criminal Appeals Nos. 387 to 392 of 1952 and Mr. Veeraswami for the respondent in Criminal Appeal No. 532 of 1952 have taken the prelimi- nary objection that these appeals by the State are incompetent because, according to them, Section 417, Criminal Procedure Code, contravenes Article 14 of the Constitution and is therefore ultra vires. This is how Mr. Pai developed his thesis. In every criminal trial the accused and the prosecutor are in the position of litigants before the Court, and, the circumstance that the prosecutor is a State makes no difference to its legal status before the Court. The judgment, whether of acquittal or conviction terminates the trial, and from the judgment, the parties must have equal rights of appeal-the accused if he is convicted and the State if the accused is acquitted. But, the rights of appeal which have been actually conferred by the Criminal Procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the speedier trial of certain offences." Section 3 of the Act empowered the State by notification in the official Gazette to constitute special Courts, and Section 4 empowered the Government to appoint Special Judges to preside over such Courts. Section 5(1) ran thus: "A special Court shall try such offences or classes of offences or cases or classes of cases as the State Government may by general or special order in writing, direct." The Calcutta High Court held that this section was unconstitu- tional. Harries, C.J., expressed the view that the provision was discri- minatory and violative of Article 14 of the Constitution in so far as it purported to vest in the State Government an absolute and arbitrary power to refer to a Special Court for trial "any cases", which must include an individual case. The Supreme Court, on appeal, upheld the view of the Calcutta High Court by a majority of six to one. (1) [1952] S.C.J. 55. Mr. Pai argued that Section 417 of the Criminal Procedure Code empowers the State to pick and choose particular cases in respect of which it would prefer an appeal. It vests in the State power to harass particular and individual persons who have been acquitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstanced shall be treated alike both in privileges conferred and liabilities imposed." At page 404 the author goes on, "Discrimination may exist in the administration of the laws, and it is the purpose of the equal protection clause to secure all the inhabi- tants of the State from intentional and arbitrary discrimination arising in their improper or prejudiced execution, as well as by the express terms of the law itself....It is well understood that a statute or provision, not objectionable on its face, may be adjudged unconstitu- tional because of its effect in operation or because it vests in officers, boards or administrative agencies unregulated official discretion." The mischief of Section 417, Criminal Procedure Code, Mr. Veeraswamy concluded, lies in that the legislature has left the selection of cases in which there should be appeals from acquittals to the absolute discretion of the State Government without laying down any selective principle on the basis of which that discretion is to be exercised. The individuals, whose acquittals are to be challenged in appeal, are not to be selected on the basis of any reasonable or understandable rule or principle. No differentia, let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of Article 14 would appear to be in conflict with the provisions of Article 289." (3) In this Court, a different view of the matter has been taken. In C.M.P. Nos. 6517 etc. of 1951, Rajagopalan, J., observed: "The legislature and the Government of the State of Madras is a 'State' within the meaning of Article 12 of the Constitution. Neither the legislature nor the Government of the State of Madras can be a 'person' as that expression has been defined by Section 3, clause 39 (clause 39 is probably a mistake for 42) of the General Clauses Act read with Article 367 (11) of the Constitution....................As I have already pointed out there can be no occasion when either the Legislature or the Government either of the Union or of one of the States can ever be viewed as a juristic person within the meaning of the Constitution." (4) Article 12 of the Constitution defines "the State" as including besides the Government and Parliament of India the Government and the legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Article 14 reads, "The State shall not deny to any person equality bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution contains express provision in that behalf. That is true; but to the extent that such provision exists it would be in conflict with Article 14. I prefer the view that has been taken in this Court to that taken in Moti Lal v. Uttar Pradesh Government(1). I shall now examine some of the other contentions raised by Mr. Pai. Our Criminal Procedure Code has been in operation for several decades and it classifies litigants before criminal Courts into prosecutors or complainants on the one side and accused persons on the other; and it confers differing rights and imposes differing obligations on persons in each of these two categories. Thus the accused starts with a presumption in his favour that he is innocent. He gets the benefit of any reasonable doubt that the circumstances raise. He cannot be compelled to go into the box and testify against himself. He is not bound to answer questions put to him under Section 342, Criminal Procedure Code, and, if he answers falsely, he cannot be proceeded against. Subject to certain exceptions, no confession he may have made to a police officer may be used against him-nor, subject again to certain exceptions can evidence of his bad char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e compoundable only with the leave of the Court, and offences which are compoundable without reference to any authority. Then again, there are categories of offences which the Court will not take cognizance of except on the com- plaint of the person directly aggrieved or of some specified authority or the sanction of such authority. Again, whatever the nature of the case, once it is committed to a Court of Session, the Code gives the State com- plete carriage of the proceedings by requiring that the case shall be con- ducted by a Public Prosecutor. It may be said, all this is true enough, but why should the State be given the sole right of appeal from an acquittal when such a right is denied to a private person? Part of the answer to this lies in the consideration that a crime, unlike a civil wrong, not only involves an injury to the individual directly affected but also impairs the security of the State. It has been stated, and I think quite truly, "Every unpunished murder takes away something from the security of every man's life." (Daniel Webster.) In like manner every other unpunished offence, though necessarily in a lesser degree, takes away something from the security of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances in which the law calls upon its agents to exercise their discretion are legion. Every exercise of discretion involves to some extent picking and choosing; but that will not necessarily and by itself have the effect of making the law which confers a discretion, bad; it would depend on other factors also. The contention of Mr. Veeraswamy that Section 417, Criminal Procedure Code, is bad because it does not lay down any principles for the guidance of the State Government, overlooked the impracticability of enunciating a comprehensive rule in that regard. On this point certain observations that appear on pages 586 and 587 of Willis on Constitutional Law are of interest: "Is it proper classification to put in one class those who get the consent of a board or of an official and into another class those who do not, where no standard is set up to control the action of the board or official? Some cases answer this question in the affirmative, while other cases answer it in the negative. Perhaps the best view on this subject is that due process and equality are not violated by the mere conference of unguided power, but only by its arbitrary exercise by those upon whom conferred.If a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween the duty and the power. Where that discretion is exercised arbitrarily or oppressively or capriciously the citizen has his remedy. But, if I were to uphold the objections raised by learned counsel for the respondents and to say that wherever any exercise or discretion is involved there is a denial of equality, a large part of the Code of Criminal Procedure must go by the board. The Code as it stands confers on a Magistrate in his capacity as an administrative officer power to decide whether he will direct the police to investigate a non-congnizable case or not. The Station House Officer is given a discretion to decide whether he will charge sheet a particular case or not; the District Magistrate as an administrative officer is given power to tender pardon to an accomplice; the Public Prosecutor is given a discretion to withdraw from a prosecution. And similarly in a long series. All these and numerous other provisions will have to be jettisoned if these objections are valid. I have no doubt that the framers of the Constitution did not intend to bring about such violent change in our criminal judicial system. The argument of Mr. Pai that in the 19th century we had a foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, or to a failure to conform to the general principles of law in all the States, or a failure to be reasonable." A final and complete answer to the objection that Section 417, Criminal Procedure Code, contravenes Article 14 of the Constitution is to be found in Article 134(1)(a) which reads thus: "An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death." This Article, it will be seen, takes note of the existing right of the State to appeal from orders of acquittal and proceeds on the assumption that the right is a valid one. Mr. Pai stated that this provision in Article 134(1)(a) does not invali- date his contention that Section 417, Criminal Procedure Code, is bad to the extent that it confers on the State larger powers of appeal than on an accused person, because, as he explained, in the case of a trial for murder both the accused and the State get only one appeal each and the appeal in both cases lies to the High Court, and, it is only to this extent that a right of appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ash the order of the Commissioner. Counsel for the bank urged that Section 41 of Madras Act XXXVI of 1947 was ultra vires the legislature because it discriminated between employees on the one hand and employers on the other and as among employers themselves between employers to whom the Act applies (1) A.I.R. 1953 S.C. 394. (2) A.I.R. 1953 Mad. 326. and those to whom it does not. His contentions were negatived on the ground that the discrimination proceeded on a reasonable classification. The next case cited by the learned Public Prosecutor to which I need refer is reported in Palko v. Connecticut(1). That was a case in which the State of Connecticut had passed a law in these terms: "Section 6494. Appeals by the State in criminal cases.-Appeals from the rulings and decisions of the superior Court or of any criminal Court of common pleas, upon all questions of law arising on the trial of criminal cases, may be taken by the State, with the permission of the presiding Judge, to the Supreme Courts of Errors, in the same manner and to the same effect as if made by the accused." The accused in that case had been convicted of murder in the second degree by the trial Court. On appeal by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, but he has a resident agent there, that agent is held liable. The Act, it will be noticed, does not say that where a person is non-resident and has no local agent he is exempt from liability under the Act. Faced with this difficulty Mr. Pai observed that the power taken to tax a non-resident contravenes Section 99 of the Government of India Act,1935, which was in force at the time these transactions were entered into. Section 99, said Mr. Pai, precludes a State legislature from enact- ing laws having operation beyond the territories of the State which passed the law. Now, granting that, it does not follow that the Madras General Sales Tax Act was bad in every case in which it imposed a burden on non-resident. If an alien had come into the territory of this State and committed an offence here he could certainly have been punished accord- ing to the law in force at the time. In like manner, to the extent that the Madras General Sales Tax Act imposed a liability on non-residents in respect of transactions they put through inside this State, the Provin- cial Legislature had and has jurisdiction to make them liable. Mr. Pai next contrasted the language of the Madras General Sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 2-30 A.M. on 17th April, 1951, P.W. 5, the Sub-Inspector of Police, Gudalur, searched the house of the accused in the presence of P.W. 3, the Village Munsif, and P.W. 4, the Talayari, and recovered two bags, one containing 85 counterfeit one- rupee coins and the other containing various articles which could be used to make counterfeit coins. In addition, lumps of lead were also seized. The learned Assistant Sessions Judge thought that it would not be safe to act on this evidence. He observed: "Unfortunately in this case, the story of recovery is narrated by the Village Munsif, the Talayari and the Sub-Inspector who are all officials and there is no testimony of any independent or respectable persons of the locality. Moreover, no reason is given as to why the Talayari of Mela Gudalur was not sent for but only the Talayari of Keela Gudalur was sent for. Unfortunately P.W. 4 and the accused are not on very good terms." Now, it may be that on the evidence a different view can be perfectly taken. But it seems to me the right question to ask is not whether if I had tried the case I would have convicted the accused, but, whether the conclusion reached by the Assistant Sessions Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s tax payable by him. CRIMINAL APPEAL No. 388 OF 1952. The evidence of P.W. I shows that during the year 1946-47 his employers Messrs. Volkart Brothers, Fort Cochin, purchased from the accused coir yarn of the value of Rs. 1,27,610-8-0. Now, though all these goods were delivered at Fort Cochin they included purchases which had been actually made by Messrs. Volkart Brothers in Alleppey and subsequently despatched to Cochin. In respect of the sales effected in Alleppey the State of Madras cannot naturally claim sales tax. Mr. Pai, counsel for the accused, filed a statement, which on behalf of the learned Public Prosecutor was stated to be correct, showing (after excluding the transactions in Alleppey) the sales tax payable in respect of the transactions effected in Cochin. The figure is Rs. 2,537. I allow the appeal and impose a fine of Rs. 300 on the accused. I also direct him to pay the sales tax amount of Rs. 2,537 to the Government. CRIMINAL APPEAL No. 389 Of 1952. Here it appears from the figures furnished by Mr. Pai and accepted as correct on behalf of the Public Prosecutor, that though the accused was assessed to a tax of Rs. 2,166 the bulk of the transactions were with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tside Fort Cochin and that the tax payable on transactions inside Fort Cochin is only Rs. 784. I convict the accused and sentence him to pay a fine of Rs. 100. I also direct him to pay the tax of Rs. 784 due to the Government. CRIMINAL REVISION CASE No. 778 OF 1952 and CRIMINAL REVISION CASE No. 655 OF 1952. The accused in these two cases was a firm called M.R. Ayppu Co., Ltd. It has an office in Mattancherri, outside Fort Cochin. During the year 1947-48 the firm sold various quantities of goods to Messrs. Volkart Brothers and Pierce Leslie Co., Ltd., both situate in Fort Cochin. In respect of these sales the firm was assessed to sales tax amounting to Rs. 3,850-15-8. The accused refused to pay the fine and so was prose- cuted and convicted by the Sub-Divisional Magistrate, Fort Cochin. On appeal the Sessions Judge held that the accused was a non-resident in the State and that therefore it could not be assessed to sales tax even in respect of the transactions entered into inside the State. But the Sales Tax Act was amended by the Madras Act XXV of 1947 by the insertion of section 16(A) which is to the effect, "The validity of the assessment of any tax, or of the levy of any f ..... 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