# Akhlakali Ha.Jatalli v. Th•Stateof Bombtg

- **Citation:** [1954] 1 S.C.R. 444
- **Court:** Supreme Court of India
- **Decided:** 1951-03-30
- **Case number:** Civil Appeal No. 160 of 1950
- **Bench:** Mehr Chand Mahajan, S. R. DAs, Ghulam Hasan, Jagannadhadas
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/akhlakali-ha-jatalli-v-th-stateof-bombtg-304
- **Pages:** 11

## Headnote

Indian Income-tax Act (XI of 1922), s. 42(1)-Scope of.
A Hindu undivided family was carrying on business in Bombay, Madras and the Mysore State, being treated as a single assessee and its relevant accounting period was 10th October, 1941, to
8th November, 1942.
During this period, the
Mysore branch
purchased goods from the Bombay head office and the Madras
branch
of
the
value
of
Rs.
2 lakhs odd.
The Incometax Officer estimated
these
purchases
of
the
Mysore
branch
in
British
India at
Rs. 3
lakhs and
its
profits
at
Rs. 75,000 on the sale of these goods )n Mysore.
In view of the
provisions of s. 42 of the Indian Income-tax Act, half of this profit,
i.e.,
to the extent of Rs. 37,500, was deemed to accrue or arise in
British India because of the business connection of the non-resid~
ent branch in British India :
Held, that, on the facts and circumstances of the case, the Income-tax Officer was right in applying the provisions of s. 42 (1)
of the Income-tax Act and holding that
Rs. 37,500
were profits
deemed to accrue in British India and in including in the
assess~
ment a portion thereof.
Held also, that s. 42 sub-ss. (!) and (3), cover cases of both
residents as well as non-residents.
Commissioner of Income-tax v.
Western India
Life Insurance
Co. [1945] (13 LT.R. 405) dissented from. Sutlej Cotton Mills Ltd.
v. Commissioner of Income-tax, West Bengal (A.LR. 1950 Cal. 551),
Commissioner of Income-tax/Excess Profits Tax, Madras v. Parasuram /ethanand (A.LR. 1950 Mad. 631), Commissioner of Income-tax.
Bombay v. Ahmedb}iai
Umarbhai
& Co. ( [ 1950] S.C.R. 335),
referred to.
S.C.R.
SUPREME COURT REPORTS
445
C1v1L
APPELLATE
JuR1so1cTroN :
Civil
Appeal
No. 160 of 1950.
Appeal against the Judgment and Decree dated the
30th March, 1951, of the High Court of Judicature
at
Bombay (Chagla C. J. and
Tendolkar J.) in
Income
Tax Reference No. 34 of 1950.
C. K. Daphtary, Solicitor-General for India, (Porus
. A. Mehta, with him) for the appellant.
R. /. Kolah for the respondent.
1953.
December 18. The Judgment of the
Court
was delivered by
MAHAJAN J.-This is an appeal from the Judgment
of the High
Court of Judicature at Bombay delivered
on a reference
under
section 66 ( 1) of the
Indian
Income-tax
Act,
1922,
whereby the
High
Court
answered the first referred question in the negative.
The assessment in question concerns
the year 194344.
A Hindu undivided
family
was
carrying
on
business in Bombay, Madras and the Mysore State.
Its
business was taken over by a registered . firm
on
17th March,
1942.
For the purpose
of this
appeal
however this· circumstance is not material. The case
has been dealt with on the
assumptipn that a single
assessee carried on business from 10th October, 1941,
to 8th November, 1942, the relevant accounting year.
According to the accounts of the assessee, during this
period the Mysore branch purchased goods from the
Bombay head office
and the
Madras branch
of the
value
of
Rs. 2,45,455.
The Income-tax officer
estimated these purchases of the Mysore branch in British
India at Rs. 3,00,000 and its profits at
Rs. 75,000
on
the sale of these goods in
Mysore.
In view of the
provisions of section 42 of the
Act half of this profit,
i.e., to the extent of Rs. 37,000, was deemed to accrue
or arise
in
British
India,
because
of the
business
connection of the
non-resident
branch
111
British
India.
It was contended that
the assessee being a person
resident in India, section 42
could not be invoked in
the case, because that section had application only ·to
1953
Commissioner
of Income-tax
Exc1ss Profit s
Tax, Bombay
City
v•
Messrs. Bhogilal
I.aherchand
Mahajan] .
19;3
Commissioru:r
of income-tax
E'xcels Profits
T ttX; Bombay .
City
v.
Messrs. Blwgilal
Laherc!1and
446
SUPREME COURT REPORTS
[19541 •
cases
of
non-residents.
The
Income-tax
Tribunal
following the decision of the
Bombay High Court, in
Commissione;- of
Income-tax v.
Western
India Life
Insurance
Co. Ltd.(' ), upheld this
contention,
and
ruled that no part of the Mysore profit could he

## Text

1953
Akhlakali
Ha.Jatalli
v.
Th•Stateof
Bombtg.
1953
Dec. 18.
SUPREME COURT REPORTS
[1954]
charged accepted and
the
appellant
acquitted
and
discharged and forthwith set at liberty.
Appeal dllowed.
Agent for the respondent : G. H. Rajadhyaksha.
COMMISSIONER OF INCOME-TAX/EXCESS
PROFITS TAX, BOMBAY CITY
v.
MESSRS. BHOGILAL LAHERCHAND including
BATLIBOI & CO., BOMBAY.
[MEHR CHAND MAHAJAN, S. R. DAs, GHULAM
HASAN and JAGANNADHADAS JJ.]
Indian Income-tax Act (XI of 1922), s. 42(1)-Scope of.
A Hindu undivided family was carrying on business in Bombay, Madras and the Mysore State, being treated as a single assessee and its relevant accounting period was 10th October, 1941, to
8th November, 1942.
During this period, the
Mysore branch
purchased goods from the Bombay head office and the Madras
branch
of
the
value
of
Rs.
2 lakhs odd.
The Incometax Officer estimated
these
purchases
of
the
Mysore
branch
in
British
India at
Rs. 3
lakhs and
its
profits
at
Rs. 75,000 on the sale of these goods )n Mysore.
In view of the
provisions of s. 42 of the Indian Income-tax Act, half of this profit,
i.e.,
to the extent of Rs. 37,500, was deemed to accrue or arise in
British India because of the business connection of the non-resid~
ent branch in British India :
Held, that, on the facts and circumstances of the case, the Income-tax Officer was right in applying the provisions of s. 42 (1)
of the Income-tax Act and holding that
Rs. 37,500
were profits
deemed to accrue in British India and in including in the
assess~
ment a portion thereof.
Held also, that s. 42 sub-ss. (!) and (3), cover cases of both
residents as well as non-residents.
Commissioner of Income-tax v.
Western India
Life Insurance
Co. [1945] (13 LT.R. 405) dissented from. Sutlej Cotton Mills Ltd.
v. Commissioner of Income-tax, West Bengal (A.LR. 1950 Cal. 551),
Commissioner of Income-tax/Excess Profits Tax, Madras v. Parasuram /ethanand (A.LR. 1950 Mad. 631), Commissioner of Income-tax.
Bombay v. Ahmedb}iai
Umarbhai
& Co. ( [ 1950] S.C.R. 335),
referred to.
S.C.R.
SUPREME COURT REPORTS
445
C1v1L
APPELLATE
JuR1so1cTroN :
Civil
Appeal
No. 160 of 1950.
Appeal against the Judgment and Decree dated the
30th March, 1951, of the High Court of Judicature
at
Bombay (Chagla C. J. and
Tendolkar J.) in
Income
Tax Reference No. 34 of 1950.
C. K. Daphtary, Solicitor-General for India, (Porus
. A. Mehta, with him) for the appellant.
R. /. Kolah for the respondent.
1953.
December 18. The Judgment of the
Court
was delivered by
MAHAJAN J.-This is an appeal from the Judgment
of the High
Court of Judicature at Bombay delivered
on a reference
under
section 66 ( 1) of the
Indian
Income-tax
Act,
1922,
whereby the
High
Court
answered the first referred question in the negative.
The assessment in question concerns
the year 194344.
A Hindu undivided
family
was
carrying
on
business in Bombay, Madras and the Mysore State.
Its
business was taken over by a registered . firm
on
17th March,
1942.
For the purpose
of this
appeal
however this· circumstance is not material. The case
has been dealt with on the
assumptipn that a single
assessee carried on business from 10th October, 1941,
to 8th November, 1942, the relevant accounting year.
According to the accounts of the assessee, during this
period the Mysore branch purchased goods from the
Bombay head office
and the
Madras branch
of the
value
of
Rs. 2,45,455.
The Income-tax officer
estimated these purchases of the Mysore branch in British
India at Rs. 3,00,000 and its profits at
Rs. 75,000
on
the sale of these goods in
Mysore.
In view of the
provisions of section 42 of the
Act half of this profit,
i.e., to the extent of Rs. 37,000, was deemed to accrue
or arise
in
British
India,
because
of the
business
connection of the
non-resident
branch
111
British
India.
It was contended that
the assessee being a person
resident in India, section 42
could not be invoked in
the case, because that section had application only ·to
1953
Commissioner
of Income-tax
Exc1ss Profit s
Tax, Bombay
City
v•
Messrs. Bhogilal
I.aherchand
Mahajan] .
19;3
Commissioru:r
of income-tax
E'xcels Profits
T ttX; Bombay .
City
v.
Messrs. Blwgilal
Laherc!1and
446
SUPREME COURT REPORTS
[19541 •
cases
of
non-residents.
The
Income-tax
Tribunal
following the decision of the
Bombay High Court, in
Commissione;- of
Income-tax v.
Western
India Life
Insurance
Co. Ltd.(' ), upheld this
contention,
and
ruled that no part of the Mysore profit could he taxed
in British India. At the instance of the Commissioner
of Income-tax/Excess Profits Tax, Bombay City, three
questions were referred to the High Court under section 66 (1), the first of these being:-
"Whether in
the
circumstances of the case
can
the profits on the sale of goods in the Mysore State be
deemed to accrue or arise in
British
India
under
section 42 ( 1) of the
Indian Income-tax Act."
The High Court returned an answer to the question
in the negative after resettling it in these terms :-
"Whether on the facts and in the circumstances
of
the case the
Income-tax
Officer was right in applying
the provisions of section 42 ( 1) of the Income-tax Act
and holding that
Rs. 37,500 were profits
deemed to
accrue in British India and in including in the assessment a portion thereof."
This appeal is before us on a certificate granted
by
the High Court, and the only question canvassed here
is whether section 42 (I) of the
Indian
Income-tax
Act has application to the case of a resident
assessee
or
whether
its scope is
limited to
a non-resident
assessee alone.
It is common ground that if section 42 of the Act
has no application to the case of a resident assessee
the
whole of the
Mysore profit, namely Rs. 75,001),
cannot be included in the assessment of the year
194344.
On the other hand, if such an assessee
is
within
the ambit of the section, in that event the sum of
Rs. 37,000 or any part of it would be liable to assessment during the assessment year in question.
Section 42 of the Act is in these terms :-
" (1) All income, profits
or
gains
accrumg
or
ansmg,
whether
directly or indirectly,
through
or
from any business connection in the taxable territories,
(1) [1945] 13 I.T.R. 405.
S.C.R.
SUPREME COURT REPORTS
447
or • through or from any money lent at interest
1953
and brought into the taxable territories in cash· or in Com.missioner
kind or through or from the sale, exchange or transfer of Income-tax
of a capital asset in the taxable territories, shall be Excess Profits
· chargeable to income-tax either in his name or in the
Tax, 1!ombay
name of his agent, and in the latter case such agent
Oity
shall be deemed to be, for all t?e purposes of this Act, Messrs.vBhogilal
the assessee in respect of such mcome-tax :
Laherchand
Provided that where the person entitled to the
.
MahajanJ.
income, profits or gains is not resident in the taxable
territories, the income-tax so chargeable may be
recovered by deduction under any of the provisions
of section 18 and that any arrears of tax may be
- recovered also in accordance with the provisions of
this Act from any assets of the non-resident person
which are, or may·at any time come within the taxable territories :
Provided further that any such agent, or any person who apprehends that he may be assessed as such
an agent, may retain out of any money payable by
him to such non-resident person a sum equal to his
estimated liability under this sub-section, and in the
event of any disagreement between the non-resident
person and such agent or person as to the amount to
be so retained, such· agent or person may secure from
the Income-tax Officer a certificate stating the amount
to be so retained pending final settlement of the
liability, and the certificate so obtained shall be his
warrant for retaining that amount :
Provided further that the amount recoverable
from such agent or person at the time of final settlement shall not exceed the amount specified in such
certificate e'xcept to the extent to which such agent
or person may at such time have in his hands additional assets of such non-resident person.
(2) Where a person not resident or not ordinarily
resident in the taxable territories carries on busimss
with a person resident in the taxable territories, and
it appears to the Income-tax Officer, that owing to
the close connection betw\:)en sqc}i per1:39~s t:Q.e cours(f
59
448
SUPREME COURT REPORTS
[1954)
1953
of business is so arranged that the business don~ by
OommiSBioner the resident person with the person not resident or
~f Income-tax not ordinarily resident produces to the resident either
Excess Profits no profits or less than the ordinary profits which might
Tax, Bombay be expected to arise in that business, the profits deriv-
- City
ed therefrom or which may reasonably be deemed to
M
vB_h
·z 1 have been derived therefrom, shall be chargeable to
cssrs.
ogi a
,
h
f
h
'd
Laherchand
income-tax m t e name o t e res1 ent person who
shall be dee:qied to be, for all the purposes of this Act,
Mahajan J.
the assessee in respect of such income-tax.
(3) In the case of a business of which all the
operations are not carried out in the taxable territories
the profits and gains of the business deemed under
this section to accrue or arise in the taxable territories
·shall be only such profits and gains as are reasonably
attributable to that part of the operations carried out
in the taxable territories,"
Before its amendment in the year 1939 the first part
of the section ran thus : --
" 42( 1 ).
ln the case of any person residing 01~t
of British I ndi:a, all profits or gains accruing or arising
to such person, whether directly or indirectly, through
or from 11,ny business connection or property in British
India, shall be deemed to be income accruing or arising within British India, and shall be chargeable to
income-tax in the name of the agent of any such
person, and such agent shall be deemed to be, for all
the purposes of this Act, ,the assessee in respect of
such income-tax : ".
'
The rest of the section was substantially in th~ same
terms. In spite of its amendment in 1939 the marginal
note to the section continued to refer to "nonre;idents " as before, though the words "residing out
of British India" were deleted from the body of subsection ( 1).
The retention of this marginal note gave
rise to conflicting decisions on the question whether
the section in spite of the change made in its language
in 1939 still continued to have application to cases of
"non-residents" alone.
In order to clarify this
matter, by Act XXII of 1947, the marginal note was
amended and it now is in these terms:-
I
)
I
• -
rr'
_,
..
\
S.C.R.
SUPREME COURT REPORTS
449
"Income deemed to accrue or a1ise within British
l95J
India."
Oommissioncv
It is significant that the changt's made in section o.f Income.tax
42 in the year 1939 were consequential to the entire Excess Profits
recasting of section 4 of the Act.
Section 4 as it stood Tax, Bombay
City
prior to 1939 charged income-tax on all income, profits
v.
or gains, from whatever source derived, accruing or Messrs. Blwgital
arising, or received in British India or deemed under
Lahenhand
the provisions of the Act to accrue, or arise, or to be
received in British India. It further provided that
Mahajan J.
the income, profits and gains accruing or arising without British India to a person resident in British India,
shall, if they are received in or brought into British
India, be deemed to have accrued or arisen in British
India and to be income, profits and gains of the year
in which they are so received or brought, notwithstanding the.fact that they did not so accrue or arise
in that year. Hy the amendment in the year 1939,
the total income of any previous year of any person
·was defined as including all income, profits and gains
from whtitever source derived which
"(a) are receivfld or are deemed to be received in
British India in such year by or on behalf of such
person, or
(b) if such person
is reBident in British India
during such year,--
(i) accrue or arise or are deemed to accrue or
1irise to him i'!i British India during such year; or
(ii) accrue or arise to him without British India
during such year ; or ............. ..
( c) if such person is not resident in British India
during such year, accrue or arise or are deemed to
accrue or arise to him in British India during such
year; ............... "
This legislative change in the Act made all income
accruing or arising or deemed to accrue or arise in
British India during the previous year to a resident
the subject of a charge, apart from income accruing or
arising without- British India during the previous
year.
450
SUPREME COURT REPORTS
[1954]
1963
The term "deemed" brings within the net of chargeaommissianer apility income not actually accruing but which is
of Income-tax supposed notionally to have accrued. It involves a
Excm Profits number of concepts. By statutory fiction income
Tax, Bombay which can in no sense be said to accrue at all may be
City
eonsidered as so accruing.
Similarly, the fiction may
M
. vBh .1 1 relate to the place, the person or be in respect of the
~:~;~cha~~· a year of taxability. Section 42(1) defines what income
is deemed to accrue within the taxable territories. It is
Mahajan J.
only by application of this definition that one class of
income "deemed to accrue to a resident within taxable
territories" within the meaning of section 4(1) (b) (i)
can be estimated. The words "In the case of any
person residing out of British India" were deleted from
section 42(1) during the pendency of the amendment
Bill of 1939 in the Council of State presumably with
the object of making the section applicable to any
person who had any income which in a primary sense
arose in British India, even though technically it had
arisen abroad, irrespective of the circumstance whether
that person was resident, ordinarily resident or not
ordinarily resident.
By section 8 of Act XXIII of 1941, clause (c) ·was
added to section 14 of the Act. No effect was to be
given to this amendment before the year ending 31st
March, 1943. The relevant part of section 14 after this
amendment is in these terms :-
"The tax shall not be payable by an assessee in
respect of any income, profits or gains accruing or arising to him within a Part B State, unless such income,
profits or gains are received or deemed to be received
·in or are brought into the taxable territories in the
previous. year by or on behalf of the assessee, or are
assessable under section 12-B or section 42."
.
•
In view of these legislative changes in the.provisions
of sections 4, 14 and 42 of the. Act, the conclusion is
irresistible that the object of recasting section 42{1) in
general terms _was to make the definition of·. ''.deemed
incprp~e"~given in the section generally applicable to all
classes of assessees.
This sub-section has been drafted
.
in the wid~t Wm• and th~• nothing whateoov~ in(~
S.C.R.
SUPREME COURT REPORTS
451
its language to suggest that its operation is confined
1953
to non-residents only. Wherever the legislature intendCommissioner
ed to limit the opera~ion of any part of this section to of Income-tax,
non-residents alone, it said so in express terms. SubExcess Profits
section (2) and the latter portion of sub-sectio.1 (1) Tax, Bombay
expressly concern themselves with the case of nonCity
residents, while sub-sect.ions (nand (3) ar~ so framed Messr6.v~hogilal
that they cover both residents and non-residents.
Laherchand
A Bench of the Bombay High Court in Commissioner
of Income-tax v. Western India Life Insurance Co.('),
Mahajan J.
held t~at notwithstanding its amendment in 1939 the
section applied only to non-residents. Reliance was
placed, inter alia, on the circumstance that the marginal
note appended to the section indicating that it applied
to non-residents alone, had not been deleted. To avoid
this criticism and to remove doubts the legislature by
Act XXII of 194 7 changed the marginal note also.
It seems to us that any other construction of the
section would create an anomaly, inasmuch as the Part
B State income falling under section 42 would not be
assessable in the hands of a resident, but it would be
assessable in the hands of a non-resident, because the
Income-tax Act while it ropes in world income of a resident, exempts income accruing within the Part B States
from its ambit, except when such income 1s received
or is brought into taxable territory or comes within the
ambit of section 42. Such a construction would be
contrary to the policy of the Act.
It is unnecessary to dwell on this point at any great
length in view of the circumstance that the decision in
Commissioner of Income-tax v. Western India Life
Insurance Co.('), has been dissented from and for. good
reasons, ill subsequent cases.
In Sutlej Cotton Mills Ltd. v. Comrnissioner of Incometax, West Bengal(2) a Bench of the Calcutta High Court
considered this matter at some length and reached the
decision that sub-sections (I) and. (3) of section 42
covered cases of both residents as well as non-residents.
The same view was taken by a Bench of the Madras
'High Court in Commissioner of Income-tax/Excess
(1) [1945] 13 I.T.:E~. 405.
(2) A.I.R. 1950 Cal. ~5I.
j953
Conllini.,·liioner
of lnco1ne·tax
Excess Profits
Tax, Bo11ibay
0-ity
v.
452
SUPREME COURT REPORTS
[1954]
Profits 'l'llX, 111 a<lras v .. Pams'Urmn J ethanand('). Again
the matter was discussed in this court in Commissioner
of Incorne-tax, Bornbrty v·. Ahmedbhai Umarbhai & Go.( 2 )
by Patanjali Sastri J., as he then was, and also by
Mukherjea J. in the same case.
This is what Patanjali
Sastr! J. said on this point : ·
"It is noteworthy that the first part of sub-section (1)
Met»srs. Bhogilal
La.herchand
of section 42 providing that
certain· classes of
income are to be deemed to accrue or arise in British
India is not confined iu its i1,pplicatiou to nonresidents, but is in general terms so as to be applicable to both residents and non-residents.
Before
its amendment in 1939 the sub-section began with the
words 'in the case of any person residing out of British
India' which obviously restricted the application of
the provision to non-resident persons, but in its
amended form the sub-section has been recast into
two distinct parts, the first of which is not so restricted,
;md the second part alone, which begins with the
words 'and where the person entitled to the income,
profits and gains is not resident in British India', is
made applicable to non-resident persons, thereby
showing that the former part applies to both residents
and non-residents.
The opening words of the first
proviso also point to the same conclusion, for these
words would be surplusage if the sub-section as a
whole applied only to non-residents. A contrary view
has, no doubt, been expressed by a Division Bench of
the Bombay High Court in Commissioner of lncornetax v. Western India Life Ins'Urance Go. Ltd.('). Though
reference was made in that case to the alteration in
the structure of sub-section (1) its significance, as it
seems to me, was not properly appreciated. The facts
that the marginal note to the whole section. refers to
'non-residents' and that the section itself finds a place
in Chapter V headed 'Liability in special cases' were
relied upon as supporting the view that sub-section (I)
as a whole applies ·only to non-residents.
As pointed
out by the Privy Council in Bal·mj K1mwar v. J ll{fatpctl
Singh('), marginal notes in an Indian statute, as in an
MahajanJ.
..
(1) A.LR. 1950 Mad. 63r.
(3) [1945] 13 I.T.R, 405.
(2) (1950] S.C.R. 335.
• (4) 26 All. 393, 406.
S.C.R.
SUPREME COURT REPORTS
453
Act of Parliament, cannot be referred to for the pur1953
pose of construing the statute, and it may be menCommissioner
tioned in this connection that the marginal note relied of Income-tax
on has since been replaced by the words ( Income .Excess Profit•
deemed to accrue or arise within British India', which Tax, Bombay
makes it clear th~t the main object of sub-section (1)
City
was to define that expression (see. ~ection 12 (a) of Act Messrs.vRhogilal
XXII of 1947).
Nor can the title of a chapter be
Laherchand
legitimately used to restrict the plain terms of an
enactment."
MahaJan J.
The same view was expressed by Mukherjea J.
Nothing that has been said by Mr. Kolah before us
justifies reconsideration of these opinions.
Mr. Kolah argued that when the world income of a
resident was brought within the net of chargeability
by section 4 in 1939 it was then wholly unnecessary to
include such an assessee in the ambit of section 42.
In our judgment, this contention is fallacious.
'Vhatever in come arises in a primary sense to a resident in
taxable territories is chargeable under section 4 (1)
(b) (i).
Hence it, was necessary to make section 42
applicable to such a'case. Whatever other consideration may arise in estimating the foreign income of a
resident will not be applicable to income deemed to
accrue within taxable territory. Moreover, as above
pointed out, in view of the provisions of section 14 (c)
resident assessees but for section 42(1) would not be
liable to assessment regarding income accruing to them
jn Part B States, even if there is a business connection
in taxable territory. Mr. Kolah was unable to suggest
any reasonable explanation for the deletion of the
words "any person residing out of British India" from
section 42 ( 1) as it stood before 1939.
The only purpose in deleting these words could be to bring residents
within the ambit of the section. There is no reason
whatsoever for not giving to the plain words of the
section the meaning that on the face of it they bear.
For the reasons given above we are of the opinion
that the answer returned by the High Court of Bombay
to the first question referred to it was
wrong.
We therefore allow this appeal· witl:i costs and answer
•
1953
Cornmi_ssioner
of. Income-tax
Excess Profits
Tax, Bombay·
City
v.
1rf.essrs. Bhogilal
Laherchand
1953
Nov. 26.
I
454
SUPREME COURT REPORTS
[1954]
this question referred to the High Court in the
affirmative.
Appeal allowed.
Agent for the appellant: G. H. Rajadhyaksha.
Agent for the respondent: Rajinder Narain.
SUKHDEV SINGH SODHI
v.
THE CHIEF JUSTICE AND JUDGES
OF THE PEPSU HIGH COURT.
[MUKHERJEA, VIVIAN BOSE and BHAGWATI JJ.]
Contempt of court-Contempt of Judges of High Court-Power
of S1'preme Court to transfer proceedings to another High CourtCriminal Procedure Code, 1898, ss. 1(2), 527-Constitution of India,
•
art. 215-Contempt of Courts Act, 1952, s. 3.
The Supreme Court bas no power under section 527 of the
Criminal Procedure Code or under any other provision of law to
transfer from a High Court, proceedings which that High Court
has initiated for contempt of itself, to another High Court.
Section 527 of the Criminal Procedrire Code does not apply to
such a oase as the power of a High Court to institute proceedings
for contempt of itself and to punish the contemner where necessary, is a special jurisdiction which is inherent in a.11 courts of
record and section 1 (2) of the Criminal Procedure Code excludes
such special jurisdictions from its scope.
It is desirable, on general principles of justice, that a Judge
who has been personally attacked should not as far as possible
hear a. contempt matter which, to that extent, concerns him
personally.
In re
Abdool and JJiahtab
(8 W.R. Or. 32), Surendra.nath
Banerjea v. Chief Justice and Judges of the High Coi<rt of Bengal
(10 I.A. 171), In re
Abdul Hasan .Jauhar (I.L.R. 48 All.
711), In the matter of Sashi Bhi<shan Sarbadhicary (I.L.R. 29 All.
95), Crown v. Sayyad Habib (I.L.R. 6 Lah. 528 F.B. I, In re Adbul
Hasan Jai<har (I.L.R. 48 All. 711), In the matter of Mi<slim Ontlook, Lahore (A.LR. 1927 Lah. 610), In re JJfurli Manohar Pra.<ad
(I.L.R. 8 Pat. 323), Harkishen Lal v. The Crown (I.L.R.18 Lah. 69),
Ambard v. Attorney-General .for Trinidad ct Tobago ([1936J A.O.
322), William Rainy v. The Justices of Sierre Leone (8 Moo. P.O.
47), InthematterofK.L.Gauba (IL.R. 23 Lah.411),Parash·tt'
ram Detaram v. Emperor (A.I.R. 1945 P'. 0. 134), ·Emperor y.