# [1955] 1 S.C.R. 872

- **Citation:** [1955] 1 S.C.R. 872
- **Court:** Supreme Court of India
- **Decided:** 1953-01-30
- **Case number:** CRIMINAL APPELLATE JuRismcnoN : Criminal Appeal No. 73 of 1953
- **Bench:** S. R. DAs, GHuLAM HASAN, Bhagwati
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1955-1-s-c-r-872-1211
- **Pages:** 5

## Headnote

Criminal Procedure Code (Act V of 1898), s. 403 (!) and (2)-
Appellants convicted for offences under ss. 392 and 332 l.P.C. while
exporting conti·aband g(!ods-Previous acquittal
for
prosecution
under s. 7 of the Ersential Supplies (Temporary Powers) Act, 1946
-JlVhether a bar to the subsequent trial for offences under ss. 392
and 332 l.P.C.
The appellants
were tried and convicted for offences
under
ss. 392 and 332 of the Indian Penal Code committed when they
were exporting certain essential supplies, the export of \vhich \Vas
prohibited and constituted an offence under s. 7 of the
Essential
Supplies (Temporary Powers) Act, 1946.
It was contended that
the appellants were already prosecuted for an offence under s. 7 of
the Essential Supplies (Ten1porary Powers) Act,
1946, and though
convicted by the Magistrate,
v.·ere acquitted by the
Additional
Sessions Judge, S:igar, and on the basis of that judgment which
'vas not brought to the notice of the
High Court the appellants
'vho had once been tried for the same offence and acquitted could
not be tried again under the provisions of s. 403( 1) of the Code of
Crin1inal Procedure for the same offence nor on the same facts for
any other offence for 'vhich a different charge fro1n the one made
against them might have been nlade under s. 236 of the Code of
Criininal Procedure or for \vhat they 1night ha,'c been convicted
under s. 237 of the Code of Crirninal Procedure.
Held, that neither s.
236 nor s.
237 'vas applicable
and that
sub-section (2) of s. 403 of the C.Ode of Crin1inal Procedure \Vas a
complete answer to the contention because the appellants "''ere not
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•
tried for the same offence as contcn1plated under s. 403( 1) but for a
_.._
distinct offence as conte1nplated by sub-section (2).
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j
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:S.C.R.
SUPREME COURT REPORTS
873
CRIMINAL
APPELLATE
JuRismcnoN :
Criminal
Appeal No. 73 of 1953.
Appeal by Special Leave granted by the
Supreme
Court by its Order dated the 30th January, 1953, from
the
Judgment and
Order dated the 12th
November,
1952, of the
High
Court of Judicature at
Nagpur in
Criminal
Revision No. 399 of 1951 arising out of the
Judgment and Order dated the 26th March, 1951, of
:the Court of the
Magistrate at
Sagar in Criminal Case
No. 44 of 1950.
Y. Kumar for the appellant.
B. Sen and l. N. Shroff for the respondent.
1954. October 8. The Judgment of the
Court was
·delivered by
GHULAM HASAN J.-This appeal under article 136 of
1:he Constitution is filed against an order of the
High
Court of Judicature at Nagpur, passed in revision under
the following circumstances.
The two appellants, Kunjilal and Deopal, who are
father and son, the latter being aged 17, were prosecuted
under section 392 and section 332,
Indian Penal
Code,
in the
Court of the
Magistrate,
Sagar. They were
sentenced under the
former
to
1 year's
rigorous
imprisonment and under the latter to a fine of Rs. 500
·each.
Their
convictions were upheld on appeal
but
Kunjilal's sentence was reduced to six months
R. I. and
Rs. 350 fine, while
Deopal was bound over
under
section 562 of the Code of Criminal Procedure and the
sentence of
imprisonment
was set
aside.
His fine
was reduq:d under section 332, Indian Penal Code,· to
Rs. 250.
They carried the matter further in revision
to the High Court but it was dismissed.
It appears that the export of certain essential supplies
such as rice and ghee was prohibited from
Madhya
Pradesh to another State and anv person
contravening
the prohibition was guilty of an offence under section 7
·of the Essential Supplies
(Temporary
Powers)
Act,
1946.
Three bullock carts belonging to the appellants
and carrying bags of rice and tins of ghee were crossing
the river
Dhasan on the
Madhya
Pradesh :111d Uttar
Prade~h border on 1st
March, 1949.
Head Constable
Kury'ilal anti
Another
v.
TMSta.t< of
Madhya Pradesh.
1954
llunjilal and
Another
v.
Tht Stau of
·Madhya Pradesh.
Ghulam Hasan J.
874
SUPREME COURT REPORTS
f1955]
AbC:lul Samad on receiving information reached the
spot, seized the

## Text

1954
.Anderson Wright
Ltd.
••
Moran aii.d
Company.
Mukherjea ].
1954
October 8.
872
SUPREME COURT REPORTS
[19551
to the arbitration agreement. If the Court 1s of opinion
that the respondent was in fact a party, the suit shall
be stayed
and the appellant
would
be allowed to
proceed by way of arbitration in accordance with the
arbitration clause. If on the other hand the finding is
adverse
to the
appellant, the
application
will
be
dismissed. The appellant will have its costs
of this
appeal.
Further costs between
the
parties will abide
the result.
Appeal allowed.
KUNJILAL AND ANOTHER
"·
THE STATE OF MADHYA PRADESH.
[S. R. DAs, GHuLAM HASAN and BHAGWATI JJ.]
Criminal Procedure Code (Act V of 1898), s. 403 (!) and (2)-
Appellants convicted for offences under ss. 392 and 332 l.P.C. while
exporting conti·aband g(!ods-Previous acquittal
for
prosecution
under s. 7 of the Ersential Supplies (Temporary Powers) Act, 1946
-JlVhether a bar to the subsequent trial for offences under ss. 392
and 332 l.P.C.
The appellants
were tried and convicted for offences
under
ss. 392 and 332 of the Indian Penal Code committed when they
were exporting certain essential supplies, the export of \vhich \Vas
prohibited and constituted an offence under s. 7 of the
Essential
Supplies (Temporary Powers) Act, 1946.
It was contended that
the appellants were already prosecuted for an offence under s. 7 of
the Essential Supplies (Ten1porary Powers) Act,
1946, and though
convicted by the Magistrate,
v.·ere acquitted by the
Additional
Sessions Judge, S:igar, and on the basis of that judgment which
'vas not brought to the notice of the
High Court the appellants
'vho had once been tried for the same offence and acquitted could
not be tried again under the provisions of s. 403( 1) of the Code of
Crin1inal Procedure for the same offence nor on the same facts for
any other offence for 'vhich a different charge fro1n the one made
against them might have been nlade under s. 236 of the Code of
Criininal Procedure or for \vhat they 1night ha,'c been convicted
under s. 237 of the Code of Crirninal Procedure.
Held, that neither s.
236 nor s.
237 'vas applicable
and that
sub-section (2) of s. 403 of the C.Ode of Crin1inal Procedure \Vas a
complete answer to the contention because the appellants "''ere not
·•
-
•
tried for the same offence as contcn1plated under s. 403( 1) but for a
_.._
distinct offence as conte1nplated by sub-section (2).
•
..
>
j
•
:S.C.R.
SUPREME COURT REPORTS
873
CRIMINAL
APPELLATE
JuRismcnoN :
Criminal
Appeal No. 73 of 1953.
Appeal by Special Leave granted by the
Supreme
Court by its Order dated the 30th January, 1953, from
the
Judgment and
Order dated the 12th
November,
1952, of the
High
Court of Judicature at
Nagpur in
Criminal
Revision No. 399 of 1951 arising out of the
Judgment and Order dated the 26th March, 1951, of
:the Court of the
Magistrate at
Sagar in Criminal Case
No. 44 of 1950.
Y. Kumar for the appellant.
B. Sen and l. N. Shroff for the respondent.
1954. October 8. The Judgment of the
Court was
·delivered by
GHULAM HASAN J.-This appeal under article 136 of
1:he Constitution is filed against an order of the
High
Court of Judicature at Nagpur, passed in revision under
the following circumstances.
The two appellants, Kunjilal and Deopal, who are
father and son, the latter being aged 17, were prosecuted
under section 392 and section 332,
Indian Penal
Code,
in the
Court of the
Magistrate,
Sagar. They were
sentenced under the
former
to
1 year's
rigorous
imprisonment and under the latter to a fine of Rs. 500
·each.
Their
convictions were upheld on appeal
but
Kunjilal's sentence was reduced to six months
R. I. and
Rs. 350 fine, while
Deopal was bound over
under
section 562 of the Code of Criminal Procedure and the
sentence of
imprisonment
was set
aside.
His fine
was reduq:d under section 332, Indian Penal Code,· to
Rs. 250.
They carried the matter further in revision
to the High Court but it was dismissed.
It appears that the export of certain essential supplies
such as rice and ghee was prohibited from
Madhya
Pradesh to another State and anv person
contravening
the prohibition was guilty of an offence under section 7
·of the Essential Supplies
(Temporary
Powers)
Act,
1946.
Three bullock carts belonging to the appellants
and carrying bags of rice and tins of ghee were crossing
the river
Dhasan on the
Madhya
Pradesh :111d Uttar
Prade~h border on 1st
March, 1949.
Head Constable
Kury'ilal anti
Another
v.
TMSta.t< of
Madhya Pradesh.
1954
llunjilal and
Another
v.
Tht Stau of
·Madhya Pradesh.
Ghulam Hasan J.
874
SUPREME COURT REPORTS
f1955]
AbC:lul Samad on receiving information reached the
spot, seized the prohibited goods and brought the carts
back to
Shahgarh in Madhya Pradesh.
When they
reached the jungle near
Shahgarh the two appellants
are alleged to have beaten
the
Head
Constable and
taken away the
property seized to the house of Paltu
Bania at Bo.grohi. They were according! y charged under
sections 332 and 392, Indian Penal Code, for voluntarily
causing hurt to a publi,c servant in the discharge of his
duty as such public servant and also for robbing him
of the goods seized by him.
The appellants denied the
offence.
They pleaded that the goods were not being
exported
to
Uttar
Pradesh
but to
a place
called
Baraitha and that they did not beat the Head Constable.
The Magistrate who tried the appellants found
that
both the offences were proved against the appellants.
de accepted
the prosecution evidence
both
on the
point of beating as well as on the point of exporting
the contraband goods.
The medical evidence supported
the prosecution case.
The appellants were accordingly
convicted and sentenced as stated above.
The learned Additim:al Sessions Judge, Sai;ar, while
agreeing with the findings of the
Magistrate further
found that the story that the carts were being taken to
Baraitha which is in Mad:1ya
Pradesh was false as the
route to Baraitha
die! not pass through
the
Dhasan
river but lay in quite a different
direction.
He, how-
·ever, held that the carts were caught at the other bank
of the river
Dhasan after they had crossed the Madhya
Pradesh border but the seizure was nevertheless legal.
This finding was sought to be made capital of in revision and it was contended that the seizure took place
beyond the border of the State of Madhya
Pradesh and
was therefore illegal. Upon the question whether the
carts were within the limits of
Madhya Pradesh State
when
they
were
actually
apprehended
there was
evidence which was accepted that the carts were seized
when they were in the mid-stream and the cart-men
requested the
Head Constable to let them take the
carts on the other side of the river so that they may
have their meals.
This was allowed and after they had
finished their meals, the carts were brought back.
Upon
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)
S.C.R.
SUPREME COURT REPORTS
875
this evidence it was held that the carts were captured
before they had crossed the
Uttar
Pradesh border and
the seizure was in the circumstances legal and proper.
The convictions were maintained
but
the
sentences
were reduced as already stated.
In a Special Leave to Appeal under article 136, it is
not open to the appellants to re-agitate
questions of
fact and ask the Court to disturb the
findings of fact
arrived at by the Courts below. Those
findings must
therefore be accepted as binding.
It was urged that
there was absence of mens rea which it is necessary to
establish under section 392.
It is
contended that the
appellants honestly believed that they were taking the
goods to a place within the
State of
Madhya
Pradesh
when
they
were
caught in the mid-stream.
This
conclusion is, however, clearly negatived by the finding
that the route which the appellants had chosen was not
the route which led to
Baraitha
or
any other place
within
Madhya
Pradesh
State but
actually
led to
Uttar Pradesh.
It was also
contended that the
appellants were
already prosecuted for an offence
under section 7 of
the Essential
Supplies (Temporary Powers) Act, 1946,
for exporting the
contraband
goods and although they
were convicted by the Magistrate they
were acquitted
on appeal by the Additional Sessions Judge, Sagar, on
October 31, 1952. It is argued upon
the strength of
this judgment which was admittedly not
brought to
the notice of the
High Court that under section 403(1)
of the
Code
of Criminal
Procedure, the appellants
who had once been tried for the offence and acquitted
could not .be tried again for
the same offence nor on
the same facts for any other offence for which a different
charge from the one made
against
them
might have
been made under section 236 or for which they might
have been convicted under section 237. Neither section
236 which deals with a case where there is a doubt as
to which offence has been committed
nor
section 237
which entitles the
Court to
convict
a person of an
offence which he is shown to have committed although
he was not charged with it, applies.
Sub-section (2) of
section 403 in our opinion furnishes a complete answer
19-88 s. c. !ndia/59.
1954
Kunjilal anti
Another
v.
Tm Stat• of
Madhya Pradesh.
Ghulam Hasan J.
1954
Kun.jilal and
Another
v.
The State of
Madhya Pradesh.
Ghulam Hasan].
1954
October 28.
876
SUPREME COURT REPORTS
[1955]
to the contention raised on behalf of the appellants.
That sub-section reads :
"403 (2) .-A person
acquitted or convicted of any
offence may be afterwards tried for any distinct offence
for which a separate
charge
might have
been made
against him on the former trial under section 235, subsection (I)."
The appellants were not tried again for the same
offence as contemplated under section 403(1) but for a
distinct offence as contemplated by sub-section (2).
It
is true that in order to
sustain the
charge
under
sections 332 and 392, Indian Penal Code, the Court had
to consider whether the seizure was legal and was made
by a public servant in the discharge of his duty but
once that was found against the appellants the further
question to be
determined was as to whether they
committed the offence of robbing the Head Constable of
the goods lawfully seized and whether they voluntarily
caused hurt to him while he was acting in the discharge
of his duties
as a public servant. Upon both these
points the finding of the Courts below is concurrent.
We hold that there is no substance in this contention.
We accordingly dismiss the appeal.
Appeal dismissed.
BACHA F. GUZDAR
v.
COMMISSIONER OF INCOME-TAX, BOMBAY.
[MEHR CHAND MAHAJAN C.J., S. R. D~s,
GHULAM HASAN, BHAGWATI and
VENKATARAMA AYYAR JJ.J
Indian Income-tax Act (XI of 1922), ss. 2(1), 4(3) (viii), 59 and
rule 24-Agricultural Income,
Meaning of-Growing and manu·
facturing tea company's dividend, Nature of-Dividend how arises
·-Distinction bettveen shareholder and partner-Difference between
company and firm-Decided cases on English Tax Uw, Use of.
Agricultural income as defined ins. 2(1) of the Indian Incometax Act, 1922, signifies
income
proximately
derived from direct
association with land by a ·person who actually tills the · land
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