# Muzaffa.nag•• the City of London v. The Metropolitan Board of Worka

- **Citation:** [1959] Supp. 1 S.C.R. 724
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Case number:** Crimin1tol Appeal No. 186 of 1956
- **Bench:** it wa.s heldW••, hoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/muzaffa-nag-the-city-of-london-v-the-metropolitan-board-of-worka-1604
- **Pages:** 10

## Headnote

"Where two statutes give authority to two public
bodies to exercis!l powers which cannot consistently
_with the object of the Legislature co-exist, the earlier
must necessarily be repealed by the later statute."
In that case the conflict \11'.&S between s. 145 of the City
of London Sewers Act, 1848 a.nd s. 141 of the Metropolis Local Ma.na.gement Act, 1855, a.nd the later wa.s
held to prevail.
The principle of these cases will
apply to the present circumstances, and if the words
" town area. committee " are not held to be a translation of the words " town panchayat ", the result is
that a Town Area Committee being vested with
power under s. 26 (a) to regulate offensive trades or
callings, the power of the Town Area. Committee must
prevail over the power of the' District Board under
s. 174(l)(k) of the District Boards Act. We, therefore,
allow the a.ppea.l, set aside the order of the High Court
a.nd order the acquittal of Asa Ram a.ppella.nt.
Appeal allowed.
NARAIN AND TWO OTHERS
v.
THE STATE OF PUNJAB
(GAJENDRAGADKAR and A. K. SARKAR, JJ.)
Criminal Trial-Material witness, who is-Failure to examine
-Effect of-If amounts to rejection of evidence-Indian Evidence
Act, r87z (I of r87z), s. r67.
Several persons attacked and seriously injured one M. After
assaulting him the assailants were carrying him away when M's
brother R came to rescue him and in self defence shot dead one
of the assailants and carried M away. For the assault on M eight
persons, including the appellants, were tried for offences under
(1) (1862) C.P. u C.B.N.S. 16x; (1862) 133 R.R. 311.
(1) S.C.R. SUPREME COURT REPORTS
721$
I
ss. 148, 307 and 364 both read with ss. 149 and 34 of the Indian
Penal Code.
At the trial R was cited as a witness by the proseicution, but R refused to give evidence claiming protection under
Art. 20 of the Constitution. The Sessions Judge upheld R's
objection and the prosecution gave him up as a witness. After
trial, the Sessions Judge acquitted four of the accused but con~
victed the appellants and one other person. In appeal before
the High Court the appellants urged that the Sessions Judge wa11
wrong in holding that R was entitled to the protection of Art. 2~
and that the trial was vitiated by th;s decision whereby the
accused had been deprived of the benefit of R's evidence.
Th~
High Court was of the view that if R had been compelled t!>
give evidence he would not have supported the prosecution but
whatever he would have stated would not have rebutted the
convincing testimony of the other witnesses and that therefore
the failure to.examine R did not in any way affect the ultimate
d.ecision of the case. The High Court apparently had s. 167 of
the Evidence Act in view. In the result the High Court uphelfl
the convictions. The appellants appealed and contended tha:t
t:he view of the High Court was not justified by s. 167 and that
the trial was not fair as R, a material witness, had been kept
out of Court.
Held, that the trial was not vitiated by the failure of the
prosecution to examine R as a witness. Section 167 did not help
the appellants as it was not a case in which evidence could be
said to have been rejected within the meaning of that section.
Further, R was not a witness material to the prosecution ina11much as he arrived on the scene after the assault was over and it
was not necessary for the prosecution to examine him to ensure
a fair trial. Where a material witness has been deliberately !>r
unfairly kept back, a serious reflection is cast on the propriety bf
the trial and the validity of the conviction resulting from it may
be open to challenge. The test whether a witness is material .is
whether he is essential to the unfolding of the narrative on
which the prosecution is based and not whether he would have
given evidence in support of the defence.
,
Habeeb Mohammad v. The State of Hyderabad, [1954] S.C.R.
475; Stephen Seneviratne v. The King, A.I.R. 1936 P.C. 289.

## Text

72'
SUPREME COURT REPORTS (1959] Supp.
1958
operation the ea.me da.y, a.re repugnant to ea.ch other,
that which last received the Roya.I assent must prevail
As• v~""'
a.nd be considered pro ta.nto a repeal of the other."
He Dist.ic1 Board, Again in Daw, Clerk of the Commissioner of Sewers of
Muzaffa.nag•• the City of London v. The Metropolitan Board of Worka
( 1 ), it wa.s heldW••,hoo J.
"Where two statutes give authority to two public
bodies to exercis!l powers which cannot consistently
_with the object of the Legislature co-exist, the earlier
must necessarily be repealed by the later statute."
In that case the conflict \11'.&S between s. 145 of the City
of London Sewers Act, 1848 a.nd s. 141 of the Metropolis Local Ma.na.gement Act, 1855, a.nd the later wa.s
held to prevail.
The principle of these cases will
apply to the present circumstances, and if the words
" town area. committee " are not held to be a translation of the words " town panchayat ", the result is
that a Town Area Committee being vested with
power under s. 26 (a) to regulate offensive trades or
callings, the power of the Town Area. Committee must
prevail over the power of the' District Board under
s. 174(l)(k) of the District Boards Act. We, therefore,
allow the a.ppea.l, set aside the order of the High Court
a.nd order the acquittal of Asa Ram a.ppella.nt.
Appeal allowed.
NARAIN AND TWO OTHERS
v.
THE STATE OF PUNJAB
(GAJENDRAGADKAR and A. K. SARKAR, JJ.)
Criminal Trial-Material witness, who is-Failure to examine
-Effect of-If amounts to rejection of evidence-Indian Evidence
Act, r87z (I of r87z), s. r67.
Several persons attacked and seriously injured one M. After
assaulting him the assailants were carrying him away when M's
brother R came to rescue him and in self defence shot dead one
of the assailants and carried M away. For the assault on M eight
persons, including the appellants, were tried for offences under
(1) (1862) C.P. u C.B.N.S. 16x; (1862) 133 R.R. 311.
(1) S.C.R. SUPREME COURT REPORTS
721$
I
ss. 148, 307 and 364 both read with ss. 149 and 34 of the Indian
Penal Code.
At the trial R was cited as a witness by the proseicution, but R refused to give evidence claiming protection under
Art. 20 of the Constitution. The Sessions Judge upheld R's
objection and the prosecution gave him up as a witness. After
trial, the Sessions Judge acquitted four of the accused but con~
victed the appellants and one other person. In appeal before
the High Court the appellants urged that the Sessions Judge wa11
wrong in holding that R was entitled to the protection of Art. 2~
and that the trial was vitiated by th;s decision whereby the
accused had been deprived of the benefit of R's evidence.
Th~
High Court was of the view that if R had been compelled t!>
give evidence he would not have supported the prosecution but
whatever he would have stated would not have rebutted the
convincing testimony of the other witnesses and that therefore
the failure to.examine R did not in any way affect the ultimate
d.ecision of the case. The High Court apparently had s. 167 of
the Evidence Act in view. In the result the High Court uphelfl
the convictions. The appellants appealed and contended tha:t
t:he view of the High Court was not justified by s. 167 and that
the trial was not fair as R, a material witness, had been kept
out of Court.
Held, that the trial was not vitiated by the failure of the
prosecution to examine R as a witness. Section 167 did not help
the appellants as it was not a case in which evidence could be
said to have been rejected within the meaning of that section.
Further, R was not a witness material to the prosecution ina11much as he arrived on the scene after the assault was over and it
was not necessary for the prosecution to examine him to ensure
a fair trial. Where a material witness has been deliberately !>r
unfairly kept back, a serious reflection is cast on the propriety bf
the trial and the validity of the conviction resulting from it may
be open to challenge. The test whether a witness is material .is
whether he is essential to the unfolding of the narrative on
which the prosecution is based and not whether he would have
given evidence in support of the defence.
,
Habeeb Mohammad v. The State of Hyderabad, [1954] S.C.R.
475; Stephen Seneviratne v. The King, A.I.R. 1936 P.C. 289.
CRIMINAL
APPELLATE JURISDICTION:
Crimin1tol
Appeal No. 186 of 1956.
Appeal by special leave from the judgment a.ud
order dated February 18, 1955, of the Punjab High
Court in Criminal Appeals Nos. 389 a.nd 406 of 1954,
a.rising out of. the judgment a.nd order dated June 16,
1954, of the Court of the Additional Sessions J ud~e,
l!'erozepur, in Sessions Case No. 5 of 1954 a.nd Tr~a.l
No. 5 of 1954.
Narain and
two Others
v.
Thi State of
Punjab
Narain and
two Others
v.
The State of
Punjab
Sarkar].
726
SUPREME COURT REPORTS [1959] Supp.
Jai Gopal Sethi, Vidya Dhar Mahajan and K. L.
Arora, for the appellants.
N. S. Bindra, R.H. Dhebar and T . .M. Sen, for the
respondent.
1958. December 4.
The Judgment of the Court
was delivered by
SARKAR, J.-Eight persons were tried for offences
under ss. 148, 307 and 364 both read with ss. 149 and
34 of the Indian Penal Code, by the Additional Sessions Judge, Ferozepur. The learned Sessions Judge
acquitted four of the accused, namely, Het Ram, Teja
.Ram, Manphul and Surja Ram as he did not think
that their presence at the occurrence had been proved
beyond reasonable doubt. He convicted the remaining
four, namely, Narain, Jot Ram, Ghent and Jalu
under ss. 307 and 364 read with s. 34.
He sentenced
Na.rain, Jot Ram and Gheru to rigorous imprisonment
for three yea.rs under s. 307 and two years under
s. _364.
He sentenced J a.Ju to two yea.rs' rigorous
imprisonment under ea.ch section. On appeal by the
convicted persons the High Court of Punjab maintained the convictions but reduced the sentences passed on
Jot Ram and Gheru to one year's rigorous imprisonment and Ja.Ju, to the term of imprisonment already
undergone.
It maintained the sentence passed on
Nara.in and dismissed his appeal. Narain, Jot Ram
and Gheru have appealed to this Court from that
judgment.
The prosecution case is that one Sultan was the
proprietor of a. field described in the proceedings as
plot No. 97. Sa.hi Ram had been a tenant of the land.
The land had not been cultivated in the year preceding the occurrence with which this case is concerned
and the owner had thereupon resumed possession of it.
On June 14, 1953, Mani Ram a son of the proprietor,
arrived at the field on a. tractor accompanied by a.
labourer, Moola. Ram, with the object of ploughing it
and found Sa.hi Ram actually ploughing. Mani Ram
turned Sa.hi Ram out of the field.
Sahi Ram raised a
protest but eventually left abandoning his plough on
the field.
Mani Ram then began to yilough the field
•
(1) S.C.R. SUPREME COURT REPORTS
727
with his tractor.
A little later the tractor developad
mechanical trouble and Mani.Ram stopped ploughing
and started attending to it.
While Mani Ram was &o
engaged, Sahi Ram arrived at the spot accompanied
by seven persons, being the accused earlier named
other than Narain, variously armed. Jalu had come
on a horse. They fell upon Mani Ram and assa.ulted
him. Moola Ram who ran to his rescue was also
assaulted.
Mo_ola Ram then attempted to run away
whereupon Sahi Ram and his party chased hi1p.
While Sabi Ham and his party had their attention on
Moola Ram, Mani Ram got into his tractor and began
to drive away from the field.
At this point of time
Narain arrived on a horse with a gun in his hand. I:Ie
told the pursuers of Moola l~am to leave him as he
was merely a hired man and pointed out that the real
culprit Mani Ram was about to escape in the tract6r.
The party then turned round and pursued Mani Raμi.
Na rain on his horse soon overtook Mani Ram ahd
fired at him while he was still on the.tractor in the
driver's seat.
Mani Ram fell down from the tractor
which, being in motion, proceeded on its own and rp.n
into a tree and stopped. Na.rain's horse fell against
the cultivator of the tractor and was injured.
M11oni
Ram picked himself up and staggered for shelter into
the hut of one Mukh Ram, which was nearby.
'.Ii'he
pursuers then came up and Jot Ram fired a shot at
Mani Ram inside the hut and so did Gheru.
Mani
Ram fell down in the hut. Mukh Ram threw himself
on the body of Mani Ram to protect him. Gheru and
Na.rain then said that they would burn the hut with
Mani Ram inside it. Sabi Ram suggested that it
would· be better to carry Mani Ram to their house and
there kill him and burn his body. Mukh Ram was
then dragged away and Mani Ram's body was put on
a horse and J alu mounted it. The party then proceeded towards the viUage by a foot path with Mani
Ram, who ·was then unconscious, as their ca.ptlve.
After they had gone some distance Raghbir, the younger brother of Mani Ram, having heard of the incident
came to rescue Mani Ram. He met Jalu on the h9rse
with Mani Ram a.ncl Sabi Ram walking close behind,
Naraili and
two Oth•rs
v.
The Stale of
Pu11jt1b
Sarkar ].
Narain and
two Others
v.
The Stale of
Punjab
Sarkar ].
728
SUPREME COURT REPORTS [1959] Supp.
the rest of the party being at some distance. Raghbir
asked Jain to put down Mani Ram on which Jain
threatened to kill, and Sahi Ram pointed his sela at
Raghbir. Raghbir then shot at Sahi Ram with the
pistol he was carrying and the latter fell down and
died soon after. Jain got off the horse and ran away.
Before the others could arrive Raghbir carried Mani
Ram to the house of one Birbal from where he was
later taken to the hospital.
'l'he defence was that the prosecution ease was
wholly false and the real facts were as follows: On
the date of the occurrence Sahi Ram was ploughing
the field when Mani Ram and Raghbir came there and
tried to stop him. There was an altercation.
Jot
Ram and Gheru who were in a field nearby came up
and advised Sa.hi Ram not to dispute over the matter
with Mani Ram but have it decided by Panchayat.
Sa.hi Ram, Jot Ram and Gheru then ·Jeft the field
and proceeded towards the village. While going Jot
Ram noticed that Sahi Ram was carrying a pistol and
took it away from him to prevent him from using it
in his excitement. Mani Ram and Raghbir also went
towards the village but by a different route. The parties -again met at the village Shamlat. Raghbir abused
Sa.hi Ram and fired a shot at him killing him outright.
Jot Ram apprehending that he might also be shot at,
fired the pistol which 'he had taken froni Sa hi Ram
and might have injured Mani Ram. There were two
unknown persons with Raghbir and Mani Ram at this
time and they also used their fire arms. Mani Ram
might have received injuries from these firings also.
The accused denied that any of them except Jot Ram
and Gheru were present at the incident.
There were thus two conflicting versions of the same
incident and there were two cross cases based on
these separate versions. We are qoncerned with the
case started on the complaint of Mani Ram and con·
cerning the injuries suffered by him and his abduction.
The other case was against Mani Ram, Raghbir,
Sultan and Dalip also a son of Sultan and was based
on what the defence version of the incident in the
present case was. In that case Raghbir and Mani
(1) S.C.R. SUPREME COURT REPORTS
729
Ram were charged under s. 302 read with s. 34 of the
Indian Penal Code for having caused the death of
Sabi Ram and Sultan and Dalip were charged under
s. 302 read withs. 109 of the same Code in the same
connection.
The learned Sessions Judge who heard both the
cases, acquitted Mani Ram, Raghbir, Sultan and Dalip
of the charges brought against them and convicted
the appellants and Jalu in the present. case accepting
the prosecution version of the incident. As we have
earlier stated, the conviction was upheld by the High
Court.
·
In view of the concurrent findings of fact in the
Courts below, the learned Advocate for the appellants
confined himself in this Court to a question of law
which we now proceed to discuss. It has to be remembered that we are concerned only with the case iμ
which the appellants had been tried for offences
against Mani Ram. With the other case we are not
concerned.
·
In the trial Court, the prosecution had cited Ra.ghbt
as a witness. Raghbir however refused to give evidence claiming protection under Art. 20 of the Constitution. The learned Sessions Judge held that Raghbir
could not be compelled to give evidence and rejected
the contention· df the accused that he was not entitled
to the protection. The prosecution•iil the end did nc>t
offer Raghbir as a witness and dropped him.
When the matter came up before the High Court in
appeal, it was said on behalf of the appellants, that
the learned Sessions Judge was wrong in holding that
Raghbir was entitled to the protection of Art. 20 and
that the trial had been vitiated by this decision as 1 a
result of which the accused had been ~eprived of the
benefit of Raghbir's evidence.
The High Court however he'ld that the fact that
Raghbir was not examined did not vitiate the trial !in
any way. It is this part of thl'l High Court judgment
that has been challenged before us by the learned
Advoca.te for the appellants. The High Court observed as follows: "We may assume that Raghbir wodld
92
Narain and
two Oth11s
v.
The State a/
Punjab
Sark111 ].
N aroift and
two Olllers
v.
- The Slate of
Punjab
S11rkur J.
730
SUPREME COURT REPORTS [1959] Supp·
not have supported the prosecution story or that he
would have admitted to having shot Sahi Ram. The
fact that he was unwilling to make a statement does
not const.itute an irregularity in the trial. Had he
been compelled to say something, he would, in all probability, not have told the truth, and the question is
how the case would have been affected by his statement? In my view, whatever he had stated would not
have rebutted the convincing testimony of the other
witnesses In the case and therefore the failure of the
Court to examine him does not in any way affect the
-ultimate decision of the case."
The learned Advocate contended that the High
Court had in view the provisions of s. 167 of the Evidence Act though the section was not in terms referred.
We think this is a fair view to take. The learned
Advocate said that what the High Court has done is
to say that even assuming that Raghbir's evidence
did not support the prosecution story, that would not
have made any difference to the result, because, whatever he stated would not have rebutted the convincing testimony of the other witnesses.
According to
the learned Advocate, this view was not justified by
s. 167. It seems to us that the expression of the opinion of the High Court on this matter has not been
happily worded. The question under s. 167 is not so -
much whether the evidence rejected would not have
been accepted against the other testimony on the
record as whether that evidence "ought not to have
varied the decision." It is clear that if what Raghbir
had said in his evidence had gone to support the
defence version, then a serious question would arise as
to whether the decision of the trial Court would have
been in favour of the accused instead of against them,
as it happened to be.
It seems to us however that s. 167 does not help the
appellants. It is clear from the record that the prosecution, though it had cited Raghbir as a witness, was
not very keen to examine him. When Raghbir objected to give evidence, the prosecution dropped· him.
Therefore it seems to us that this' is not a case in
which evidence can be said to have been rejected
(1) S.C.R.
SUPREME COURT REPORTS
73,I
within s. 167 of the Evidence Act.
The prosecution
did not in fact tender Raghbir as a witness. Nor have
we any idea as to what.he would have said had he
given evidence. Nor is it a case where the defence
wanted to call him as a witness.
It is not necessary for us, nor have we been asked,
to decide the question whether Raghbir was entitled
under Art. 20 of the Constitution to refuse to give
evidence. It is amply clear from the record that the
proijecution did not offer him as a witness upon llis
clai.ming protection under Art. 20. The learned Advocate for the appellants then argued that in this view
of the matter, it must be held that a material witness
had been kept out of court by the prosecution and that
would give rise to an adverse inference against the
'prosecution case and cast serious reflection on the f~ir
ness of the trial.
We were referred by learned Advocate to Habeeb Mohammad . v. The State of Hyderabad (1) in "this connection.
We agree that if a materjal
witness has been deliberately or unfairly kept ha.ck,
then a serious reflection is cast on the propriety of the
trial itself and the validity of the conviction resultipg
from it may be open to challenge,
The question then is, was Raghbir a material witness ? It is an accepted rule as stated by the J upicial Committee in Stephen Seneviratne v. The King (9)
that "witnesses essential to the unfolding of the
narrative on which the prosecution is based, m~st,
of course, be called by the prosecution." It will be
seen that the test whether a witness is material for the
present purpose is not whether he would have given
evidence in support of the defence. The test is whether he is a witness " essential to the unfolding of the
narrative on which the prosecution is based". Whether a witness is so essential or not would depend 'on
whether he could speak to any part of the prosecution
case or whether the evidence led disclosed that he was
so situated that he would have been able to give
evidence of the facts on which the prosecution ,reijed.
It is not hbwever that the· prosecution is hound to call
a.II witnesses who may have seen the occurrence and
(1) [19,54] S.C.R. 475.
(2) A.I.R. (1936) P.C. 289,
Narain au
lwo OIAus
v.
na Slala of
Punjab
Sarkar ].
Narain and
two OJhers
v.
1'he State of
Punjab
Sarkar ].
732
SUPREME COURT REPORTS
(1959] Supp.
so duplicate the evidence. But apart from this, the
prosecution should call all material witnesses.
Was Raghbir then a witness essential to the unfolding of the prosecution case ? That clearly Raghbir
was not. The prosecution case, as we have seen, was
concerned with the injuries caused to Mani Ram and
his abduction. According to the prosecution case,
Raghbir arrived after these offences had been committed ; after Mani Ram had been assaulted and shot at
and after he had been put on a horse and had been
carried some distance. The prosecution no doubt
admits that Raghbir shot Sahi Ram but says that he
did so in self defence. This incident is an entirely
separate incident. It is not necessary to prove it in
order to prove the offences with which the appellants
were charged. Raghbir therefore was not a witness
whom the prosecution was bound to call to establish
its case. The fact, assuming it to have been so, that
Raghbir would have said in his evidence that the
incidents did not ha.ppen as the prosecution stated,
may no doubt have established a good defence. But
if it was so, then he would have been only a witness
material for the defence and not a witness essential to
the unfolding of the narrative on which the prosecution case is based. The prosecution is not bound to
call witnesses to establish the defence but only witnesses who are material for proving its own case.
Indeed, siuce according to the prosecution case Raghbir arrived after the alleged offences were committed,
he could not have given any evidence about the prosecution case.
We, therefore, think that the contention of the learned Advocate for the Appellants that
the prosecution should have called Raghbir to ensure
a fair trial or that he was ·a witness material to the
prosecution case, is unfounded.
We do not think that
the trial has at all been vitiated by the failure to call
Raghbir. It may be pointed out that the appellants
had not sought to produce Raghbir as a witness on
their behalf.
The learned Advocate then addressed us on the
question of the sentence passed on Narain. He said
that the High Court passed a higher sentence on him
(1) S.C.R. SUPREME COURT REPORTS
733
because it was under the impression that he had
caused the only grievous injury that was found on the
body of Mani Ram. The learned Advocate pointed
out that there was no evidence to show that the grievous injury had been caused by Narain. It seem~ to
us that this contention is justified. There is however
evidence to show that Narain merited the higher
sentence. It was he who directed the attack agai,nst
Mani Ram. He called the other members of the
attacking party to desist from pursuing Moola Ram
as Mani Ram was the real enemy and should be d~alt
with. It is upon that, that the serious injuries on Mani
Ram came to be inflicted.
We, therefore, think Ghat
the higher sentence imposed on the appellant Na.-ain
was justified.
No other question arises in this appeal.
The result is that the appeal fails and is dismissed.
Appeal d·ismissed. ·
CHAUBE JAGDISH PRASAD AND ANOTHER
v.
GANGA PRASAD OHATUHVEDI
(JAFER IMAM, s. K. DAS and J.L. KAPUR, JJ.)
Revision-Revisional powers of High Court-]urisdict~on of
subordinate court dependent on existence off act-Erroneous fi.nding
as to such fact-Competence of High Court to interfere-Code of
Civil Procedure (Act V of z908), s. II5.
Landlord and Tenant-Accommodation-Agreed monthly rentNew construction-Enhancement of rent-House Allotment Officer's
findings-Power of the civil courts to interfere-U. P. Tem'Porary
Control of Rent and Eviction Act, z947 (U.P. 3 of z947), ss. 2(a)(j ),
3A, 5(4), 6.
In 1938 the respondent took on rent from' the appellant the
accommodation in dispute on a monthly rent of Rs. 21-4a~. On
January 28, 1950, the appellant made a:n application to the
House Allofment Officer under s. 3A of the U.P. Temporary Control -of Rent and Eviction Act, 1947, for an increase in rent, on
the allegation that according to the instruction of the tespondent he had made a new construction in January, 1949. The
Narain a,.11
two Others
v.
The State of
Punjab
Sarkar].
Decemb1r 5.