# ONKAR NATH & ORS v. THE DELHI ADMINISTRATION

- **Citation:** [1977] 2 S.C.R. 991
- **Court:** Supreme Court of India
- **Decided:** 1977-02-15
- **Case number:** Criminal Appeal No. 502 of 1976
- **Bench:** Y. v. CHANDRACHUD, P. K. Goswami, P. N. Sh!Nghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/onkar-nath-ors-v-the-delhi-administration-7138
- **Pages:** 16

## Headnote

Defence of lndia Rules 1971-Rule 118(1 )(a)
r/w
Notification
dated
26-11-1973 pr~hibiting a strike "in connection with any industrial dispute",
ingredients of-Legal evidence must Tfr led to prove the ingredients of an offence.
·~ Judicial notice-Whether the courts can take judicial notice of facts namely
"a railway strike was imminent" dnd such a strike was, in fact, launched on May
A
B
8, 197 4 "in a trial for an offence of "exciting workmen 'to go on strike" -
C
Section 46 and 57 of the Evidence Act (Act 1 of 1872), 1872.
In respect of an alleged speech made, on May 5, 1974, at a meeting held in
Tugblakabad Railway Station Yard inciting workers to go on strike from May 8,
1974, the appellants who were leaders of the Northern Railwaymen's
Union
were convicted by the learned Metropolitan Magistrate under Rule 118 and 119
·of the Defence of India Rules and sentenced to six months rigorous imprisonment. The order of conviction was upheld in appeal by the Sessions Court but
in revision, the Delhi High Court while upholding the conviction reduced the
D
sentence to the period already undergone.
In appeal hy special leave to this Court, the appellants contended (1) There
was no legal evidence to ·warrant the conviction; (2) The courts below were not
justified in taking judicial notice of the fact that on the date when the appellants
delivered their speeches a railway strike was imminent and that such a strike
was, in fact, launched on May 8, 1974 and (3) The conduct attributed to the
appellants does not fall within the mischief of the order because inciting other
workers to l!O on strike is outside the definition of the word "strike" contained
E
in rule 118(3)(b) of the Defence of India Rules, 1971.
Allowing the appeal by special leave, the court,
HELD : (1) The courts below were justified in assuming withrut formal
evidence that the railway strike was imminent on May 5. 1974 and that a strike
intended to paralyse the civic life of the nation was undertaken by a section of
workers on May 8, 1974.
[995A-B]
(2) The purpose of s. 57 of the Evidence Act is to provide that the court shall
take judicial notice of certain facts rather than exhaust the category of facts of
which the court may in appropriate cases take judicial notice.
Reco.!!llition of
facts without formal proof is an act of expediency.
Shutting the judicial eye
to the existence of such facts and matters is in a sense an insult to commonsense and would tend to reduce the judicial process to a meaningless and wa•steful ritual. No court insists on a formal Proof by evidence of notorious facis of
history-oast or present and events that have rocked the nation need no nroof
and are iudicially noticed. Judicial notice in snch ·matters takes place of proof
and is of equal force.
[994F-H, 995-A]
(3) The Government possesses the power to issue an appropriate orde; under
rule J 18(1) orohibitinll the strike "in connection with any industrial dispnte"
even if there is no existing industrial disnute because the nower can be exercised
oroohylactically by preventing a strike in connection with an imminent strike,
[995C-DJ
F
G
(4) Jn order to maintain a charue under rule 118(1) of the Defence of
H
India Rules, 1971. the prosecution has to establish not only that a strike was
imminent or had actually taken place of which indicial notice may be teken. but
further that the strike was in connection with the industrial dispute which is a
matter of evidence.
f995E-Fl
992
SUPREME COURT REPORTS
[1977) 2 s.c.R.
A
. ( 5) What is chargeable as contravening the prohibition must under the order
issued by the. Government of India under Rule 118(1) (a) is, in the. circumstances of this case, the wor_ds used by the speakers and not the gist of the
speeches made by a member of the audience.
A summary of spee~h may
broadly and generally not be inaccurate and it may' not faithfully reflect what
the speaker actually said and in what context.
[9940-E]
B
. (6) Rule 118(1)(a) limits the p9wer of the Government

## Text

_Characters 0–39,986 of 48,586. This is a partial read: ask again with offset=39986 for what follows._

991
ONKAR NATH & ORS.
v.
THE DELHI ADMINISTRATION
February 15, 1977
[Y. v. CHANDRACHUD, P. K. GOSWAMI AND P. N. SH!NGHAL, JJ.J
Defence of lndia Rules 1971-Rule 118(1 )(a)
r/w
Notification
dated
26-11-1973 pr~hibiting a strike "in connection with any industrial dispute",
ingredients of-Legal evidence must Tfr led to prove the ingredients of an offence.
·~ Judicial notice-Whether the courts can take judicial notice of facts namely
"a railway strike was imminent" dnd such a strike was, in fact, launched on May
A
B
8, 197 4 "in a trial for an offence of "exciting workmen 'to go on strike" -
C
Section 46 and 57 of the Evidence Act (Act 1 of 1872), 1872.
In respect of an alleged speech made, on May 5, 1974, at a meeting held in
Tugblakabad Railway Station Yard inciting workers to go on strike from May 8,
1974, the appellants who were leaders of the Northern Railwaymen's
Union
were convicted by the learned Metropolitan Magistrate under Rule 118 and 119
·of the Defence of India Rules and sentenced to six months rigorous imprisonment. The order of conviction was upheld in appeal by the Sessions Court but
in revision, the Delhi High Court while upholding the conviction reduced the
D
sentence to the period already undergone.
In appeal hy special leave to this Court, the appellants contended (1) There
was no legal evidence to ·warrant the conviction; (2) The courts below were not
justified in taking judicial notice of the fact that on the date when the appellants
delivered their speeches a railway strike was imminent and that such a strike
was, in fact, launched on May 8, 1974 and (3) The conduct attributed to the
appellants does not fall within the mischief of the order because inciting other
workers to l!O on strike is outside the definition of the word "strike" contained
E
in rule 118(3)(b) of the Defence of India Rules, 1971.
Allowing the appeal by special leave, the court,
HELD : (1) The courts below were justified in assuming withrut formal
evidence that the railway strike was imminent on May 5. 1974 and that a strike
intended to paralyse the civic life of the nation was undertaken by a section of
workers on May 8, 1974.
[995A-B]
(2) The purpose of s. 57 of the Evidence Act is to provide that the court shall
take judicial notice of certain facts rather than exhaust the category of facts of
which the court may in appropriate cases take judicial notice.
Reco.!!llition of
facts without formal proof is an act of expediency.
Shutting the judicial eye
to the existence of such facts and matters is in a sense an insult to commonsense and would tend to reduce the judicial process to a meaningless and wa•steful ritual. No court insists on a formal Proof by evidence of notorious facis of
history-oast or present and events that have rocked the nation need no nroof
and are iudicially noticed. Judicial notice in snch ·matters takes place of proof
and is of equal force.
[994F-H, 995-A]
(3) The Government possesses the power to issue an appropriate orde; under
rule J 18(1) orohibitinll the strike "in connection with any industrial dispnte"
even if there is no existing industrial disnute because the nower can be exercised
oroohylactically by preventing a strike in connection with an imminent strike,
[995C-DJ
F
G
(4) Jn order to maintain a charue under rule 118(1) of the Defence of
H
India Rules, 1971. the prosecution has to establish not only that a strike was
imminent or had actually taken place of which indicial notice may be teken. but
further that the strike was in connection with the industrial dispute which is a
matter of evidence.
f995E-Fl
992
SUPREME COURT REPORTS
[1977) 2 s.c.R.
A
. ( 5) What is chargeable as contravening the prohibition must under the order
issued by the. Government of India under Rule 118(1) (a) is, in the. circumstances of this case, the wor_ds used by the speakers and not the gist of the
speeches made by a member of the audience.
A summary of spee~h may
broadly and generally not be inaccurate and it may' not faithfully reflect what
the speaker actually said and in what context.
[9940-E]
B
. (6) Rule 118(1)(a) limits the p9wer of the Government to issue an appropnate order, general or special, for prohibiting inter alia, a strike in connection
with any industrial dispute.
Since the rule does not empower the Government
to issue an order prohibiting strikes. generally, whether it is in connection with
the industrial dispute or not, there can be no contravention of the order unless
it is established by evidence that the strike was in connection with an industrial
dispute. In the instant case, the prosecution did not lead any evidence to prove
this important ingredient of the offence and the generalisation made by the
witnesses in their evidence is wholly inadequate for accepting that the appel- ,,- ~ ~ -
!ants gave incitement to a strike in
connection with any industrial
dispute.
'
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[995F-G]
.
.
.
(7) The contention of the prosecution that what is contemplated by rule 118
( 1) (a) itself is a strike in connection with an industrial dispute and, therefore,
it is not necessary for the prosecution to establish that the strike was in connection with any industrial dispute is neither warranted nor supported by anything
contained in sub-rule (3) of rule 118 which defines expressions "industrial dispute" and "strike".
[995H, 996A-BJ
fln view of the finding that the evidence led· by the prosecution is
insufficient to establish the charge, in the instant case, the court thought
it unnecessary to consider the question whether the conduct attributed
to _the appellants fall within the mischief of the order dated 26-11-1973,
since inciting other workers to go on strike may be outside the definition
of the words "strike" contained in Rule 118(3 )(b) of the Defence of
India Rules, 1971." The court, however. pointed out that the appropriate provision of the Defence of India Rules under which an incitement to strike as in the instant ca~e may be punished in Rule 36(6) (j)
read with Rule 43(1)(a).}
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 502
of 1976.
(Appeal by Special Leave from· the Judgment and Order dated
16-9-1975 of the Delhi High Court in Criminal Revision No. 139 0£
1975).
A. K. Gupta, for the appellants.
G. Das, and R. N. Sachthey, for the respondent.
The Judgment of the Court was deliverCd by
CHANDRACHUD, J.-The appellants who are Railway employees,
were convicted by the learned Metropolitan Magistrate, Delhi nnder
rules 118 and 119 of the Defence of India Rules, 1971 and
were
sentenced to six months' rigorous imprisonment.
The order of conviction W'as upheld in appeal ?Y ~he learned A~ditional ~ssions J u_dge
and in revision by the Delhi High Court with the difference
th~t
whereas the former upheld the sentence .too, the latter h~s reduced it
to the period already undergone.
In this appeal by special 1eave the
legality of conviction is questioned by the appellants.
The case of the prosecution is that the appellants are leaders of
the Northern Railwaymen's Union and that on May 5, 1974
they
/
ONKAR NATH v. DELHI ADMN. (Chandrachud, 1.)
993
held a meeting in T\Ighlakabad Railway Yard inciting railway workers
to go on strike from May 8.
This is alleged to be in breach of the
order passed by the Government of India under rule 118 ( 1) of the
Defence of India Rules, 1971.
That rules reads thus :
'.'118.
Avoidance of strikes and lock-outs.-(1) If in
the opinion of the Central Government or the State qovcrnment it is necessary or expedient so to do for securing the
defence of India and civil defence, the public safety, the
maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services
essential to the life of the community, nothwithstanding anything contained in any other provisions of these rules, the
Central Government may, by
general or
special order,
applying generally or to any specific area and to any undertaking or class of undertakings, make provision-
( a) for prohibiting, subject to the provisions of the
order, a strike or lock-out in connection with any industrial
dispute;
A
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(b) for requiring employers;
workmen, or both,
to
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observe for such period as may be specified in the order
such terms and conditions of employment as may be determined in accordance with the order :
Provided that no orcler made under clause (b)
shall
require any employer to observe terms and conditions of
employment less favourable to the
workmen than those
E
which were applicable to them at any time within three
months preceding the date of the order."
By
~ub-rule ( 2), if any person contravenes any order made under
•
sub-rule ( 1) he shall be punishable with imprisonment for a term
which may extend to three years or with fine or with .both.
The order issueq under rule 118 ( 1) (b) by the Government of
India in its Ministry of Labour on November 26, 1973 recites that
in the opinion of the Central Government it was necessary and expedient for maintaining supplies and services essential to the life of
the c0mmunity to prevent strikes 'in the Railway Services and that
therefore "the Central Government hereby prohibits a strike in connection with any industrial
dispute/disputes in the said
Railway
Services in India for a period of s'ix months w.e.f. the 26th November,
1973."
.
In support of its case the prosecution examined three witnesses
called S. D. Sharma, Dilbagh Rai and Jasbir Singh.
Sharma's evidence is in the nature of hearsay and indeed he admits in so many
words that his knowledge regarding the incitement given by the appellants to the Railway workers to go on strike was derived solely from
information received by him.
The witness admits that he had no
personal knowledge that the appellants had held any meeting nor 11ad
F
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994
SUPREME COURT REPORTS
[1977] 2 s.c.R.
he heard their speeches.
The second witness Dilbagh Rai was
in
charge of the Police Post at Tughlakabad Railway Sration and
wa&
entrusted with the investigation of the case.
In the nature of things
he too has no personal knowledge of what the appellants did or said.
Jasbir Singh who was in charge of the Diesel Shed at Tughlakabad! is i'11 the circumstances the only witness whose evidence could,
if at all, help the prosecution to establish the charge that the
appellants had contravened the order issued by the Government of
India under r. 118(1) (a) of the Defence of India Rules, 1971.
But
even that evidence, in our opinion,
fs inadequate for proving the
charge levelled agai•nst the appellants.
Ja~bir Singh claims to have
attended a meeting addressed by the appellants but he has not stated
as to what exactly the appellants said in the meeting.
He has given
his own gist or summary of what the appellants meant to convey to
the audience stating that they incited the workers to go on strike and
threatened them with dire consequences if they did not respond to
the call.
Such a broad, resume is not safe to rely upon for holding
the charge proved. In view of the total absence of evidence showing
what the1 appellants in fact said in the meeting, the summary coined
by Jasbir Singh of the happenings in the meeting cannot form the
basis of conviction.
What is chargeable as contravening the prohibition i•mposed under1 the order issued by the Government of India
under r. 118 ( 1) (a) is in the circumstances of this case tJie words
used by the speakers and not the gist of the speeches made by a
member of the audience.
A summary of a speech may broadly and
generally not be inaccurate and yet it may not faithfully reflect what
the speaker actually said and in what context.
Therefore, we would
prefer not to rely on the gist given by the witness without knowing the
data on the basis of which the gist was given.
The charge must therefore fail.
One of the points urged before us is whether the courts below
were justified in taking judicial notice of the fact that on the date
when the appellants delivered their speeches a railway strike was
imminent and that such a strike was in fact launched on May
8,
1974.
Sect~on 56 of the Evidence Act provides that no fact of
which the Court will take judicial notice need be proved. Section 57
enumerates facts of which the Court "shall" take judicial notice and
states that on all matters of public history, literature, science or art
the Court may resort for its aid to appropriate books or documents
of reference.
The list of facts mentioned ~n section 57 of which the
Court can take judicial notice is no_t exhaustive. and indeed the pur ...
pose of the section is to provide that the Court shall take judicial
notice of certain facts rather than exhaust the category of facts ·of
which the Court may in -appropriate cases take judicial notice.
Recognition of facts without formal proof is a matter of expediency
and no one has ever questioned the need and wisdom of accepting
the existence of matters which are unquestionably within public
knowledge.
(see Taylor 11th edn. pp 3-12; Wigmore
sec
2571
foot-note; Stephen's Digest, notes to Art, 58; Whi:tley Stokes' AngloIndian Codes Vol. II p. 887). Shutting the judicial eye
to the
ONKAR NATH v. DELHI ADMN. (Chandrachud, J.)
995
existence
of such facts and matters is in a sense
an insult
to
commonsense and would tend to reduce the judicial process to a
meaningless andl wasteful ritual.
No Court therefore insists on formal
proof, by evidence, of notorious facts of history, past or present. The
date of poH, the passing away of a man of eminence and events that
have rocked the naL.'On need no proof and are judicially noticed.
Judicial notice, in such, matters, takes the place of proof and is of
equal force.
In fact, as a means
of establishing notorious
and
widely known facts it is superior to formal means of proof. Accordingly, the Court~ below were justified in assuming, without formal
evidence, that the Railway strike was imminent on May 5, 1974 and
that a strike intended to paralyse the civic life of the Nation was
....... undertaken by a section of workers on May 8, 1974.
But the matter does not rest there.
Rule 118(l)(a) empowers
the Government to issue an order prohibiting a strike "in connection
with any industrial di'spute".
The Order issued by the Government
on November 26, 1973 recites, as required by the Rule, that the Central Government prohibits a strike "in connection with any industrial
dispute" in the Railway Services in India for a period of six months.
Rule 118(2) prescribes punishment for a person who contravenes
any order made under th~ Rule.
We have~no doubt that the Government possesses the power to issue an appropriate order under Rule
118 ( 1 ) e\'.en if then; is no existing industrial dispute because the
power can be exercised prophylactically for preventing a strike in
connection· with an imminent industrial dispute.
But the prosecution
must establish, in order that the conduct charged as penal may fall
within the mis::hief of the Order, that the strike in rl!gard to which
the i•ncitement was given was in connection with an industrial dispute.
Unless that is established, there can be no contraven!ion of the order
issued by the Government, because the contravention
consists
in
doing what is prohibited by the order.
And what is prohibited by
the order is a strike in connection with an i•ndustrial dispute. Thus,
the prosecution has to establish not only that a strike was imminent
or had actually taken place, of which judicial notice may be taken,
but further that the strike was in connection with an industr;•al dispute, which is a matter of evidence.
Rule 118 (I) (a)
limits
the
power of the Government to issue an appropriate order, general or
special, for prohibiting inter alia a strike i•n connection
with
any
industrial dispute.
Since the rule does not empower the Government
to issue an order prohibiting strikes generally, whether they bear
any connection with an industr;•al dispute or not, there can
be no
contravention of the order unless it is established by evidence that the
strike was in connection with an industrial
dispute.
The
prosecution did not lead any evidence to prove this important ingredient
of the offence and the generalisation made· by the witnesses in their
evidence is wholly inadequate for accepting that the appellants gave
incitement to a strike in connection with any ·;•ndustrial dispute.
It is urged by the learned counsel
appearing for
the
Delhi
Administration, who are respondents to the appeal,
that
what
i~
contemplated by rule 118 (I) (a) itself is a strike in connection wit Ii
A
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. 976
. SUPREME COURT REPORTS
· (1977] 2 ~.C.R •
early stage might well have sorted out the dispute, be1ter_ed their relations and pre-empted this cock-fight. Doing justice is a noble behest
which blesses all; deciding the /is within a judicative pyramid, provocative of appeals and revisions, bleeds both and unwittingly incites the.
bitter pers!stence in ihe struggle to win (and 16se !) . We are courts
of justice guided by law and the signature tune of the indicature is
·Fiat Justitia.
We gently suggested, in thi·s spirit, whether the parties
would be disposed to compose their quarrel. · Coun5el as often happens,
constructively helped, but the purchase of peace at this late stage was
difficult and we gave up. Of course, adjudication on the _law and the
facts· cannot and shall not be influenced by this extra-curial excursion.
We pick up the story of the suit where we left it. In.the dog-fight
that followed, a question of court-fee was raised and decided. That
was taken up to the High Court and retllrned. A preliminary decree
for accounts of the Bombay khata w11s passed and that too leapt to
the High Court resulting in a remand, fresh issues and so on. Then a
decree was passed and both sides challenged it in appeal and cross-
. objections and the last lap of the tiring race is this court where the·
vanquished plaintiff is the appellant. We proceed to decode the justice
and the law of the cause.
· ·
· '.
>
. We may state that the plaintiff's obstinate attitude in treating the
Bombay shop and Khamgaon shop as two different persons each being_
entitled to sue the defendant without reference to the amounts due to
the latter from the former in inter-connected business dealings is a
legal fallacy and cute perversity. However we may repeat that the
defendant also proceeded on that 'shop autonomy' theory bnt only
urged that the silver bars were wrongfully omitted from the Khamgaon
khata.
Shops are not. persons although suits may be filed in trade
names. The trial court took a commonsense view in commingling_ the
business account of the same parties. This was good law. A plurality of shops owned by the same person does not proliferate into many
shop-persons.
At an intermediate stage of the many iI)volved interlocutory skirmishes, the plaintiff did allege :
] ,:-- '
"The alleged silver bars were sold by the
defendant
Suwalal through the said Bombay shop and naturally the sale
proceeds of that quantity of silver are credited in the defendant's Khata in the Bombay shop. The plaintiff, therefore
in reply to the defendant's claim of Rs. 17000/- has to file
the extracts of accounts of the Bombay shop to put the full
picture of transactions before the court.
As the
~ombay
shop shows the balance of Rs. 4535-12-0 as due to the
defendants, the said fact has been so mentioned by the plain-
. tiff iq..his statement."
In passing, we may mention that the counter-claim led to a demand
for court-fee and the High Court affirmed this oroer but reduced the
sum on which such fee was payable. Later, issues were framed by the
trial Court which reflected the integrated nature of the dealings between the two parties iii the shops at Khamgaon and Bombay. The
'
!'
•
JASRAJ INDER SINGH v. HEM RAJ (Krishna Iyer, J.)
977
learned District Judge, not obsessed, by the wrong-headed pleadings,
A
took the view that the shops, though located at different places, were
owned by the same family and the claims were so inter-connected that,
in equity and law, set off was permissible and the net S\Jm due to the
plaintiff-less than what lie had sued for-should be decreed. We may·
mention the relevant issues framed at the first round even here since we
'may have to refer to them later when dealing with a supportive submission of Shri Phadke for the defendant. Issues 5 and 7 may be reproB
duccd here:
"5. Whether the Bombay & Khamgaon shops ownicl by
plaintiff's partners are so connected with each other
that a composite account of the entries in the two
shops can be made by the Defendants ?
*
*
*
*
7. Whether on making an account of the two shops of
the Plaintiff of Bombay and Khamgaon, the Defendants are entitled to a set-off thereafter to a sum of :-
(a) Rs. 17,000/- as claimed by the Defendants or to
a set-off.
· D
(b) Rs. 4,535-12~0 as stated by the Plaintiff ?"
Later, amended pleading's led to amended issues of which issues 4 !o .
6 are meaningful and are set out below. with the findings thereon;
"4. Whether the Bombay and Khamgaon shops owned by"
plaintiff's partners are so connected with each other
that a composite account of the entries in two shops
can be made by the defendants?
-Yes
5. (a) Whether a sum of Rs. 44,697 /10 is debited to the
defendants in the account of the Bombay shop ?-Yes •
(b) Are these entries proper and correct?
(c) And in time? ,
-Yes.
-Yes.
6. Whether mi making an account of the two shops of
the plaintiff of Bombay and Khamgaon the defendants are entitled to a set-off and thereafter to a
sum ofE
F
(a) Rs. 17,000/- as claimed by the defendants or to
G
a set off
-No.
(b) Rs. 4,535/12/- as stated by the plaintiff ?-Yes.
The plain fact emerges that the two parties were having dealings
with each other, that the dealings in Khamgaon and Bombay were
inter-related and not totally different transactions, dissociated in nature
and divorced in period. The tri'al judge treated the totality of transactions as a composie account and the suit as one on accounts.· He
granted a decree on these telJllS
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998
SUPREME COURT REPORTS
[1977] 2 s.c.K.
ma~es a refere_nce to s. 531 i~ passing and not for the purpose of assuming jurisd~ct10n under 1t. If the Magistrate, in this case, had thought of assuming jurisd1cti.on under s. 531._ he would not have proceeded to record the evidence of the
par~es, on the ques~1on of the territorial jurisdiction, or referred to it at length·
m his order and arrived at the decision that he had the jurisdiction. [1002 D-G]
Purushottamdas Dalmia v. The State of West Bengal [1962] 2 S.C.R. 101'
followed.
Radharani v. Rahim Sardar. A.LR. 1946 Calcutta 459, Sakuntala v. Thiruma/yyQ [1966] 2 M.L.J. 326, Stai!e v. Tavara Naika A.I.R. 1959 Mysore 193,
Sultan Chand v. Yoi;indra Nath Baz. A.LR. 1944, Peshawar 25 and Satwanr
Singh v. Smt. Jaswant Kaur, [1956] A.L.J. 134, held inapplicable.
In the instant case, the Magistrate was one of the Magistrates mentioned in·
s. 488(1 ). He had specifically rejected the respondent's application for confiPJing
the evidence to the question of jurisdiction or to try that as a preliminary issue.
It cannot therefore be said that he had given himself jurisdiction by recourse to
s. 531.
The Magistrate had set out the point that arose for consideration, discussed the entire evidence and taken into consideration the conduct of the respondent-all of which led to the conclusion that he had the jurisdictiov to try
the application.
There is therefore no reason why s. 531 should not be held'
to be applicable to this case.
[1005F-H]
(d) The High Court erred in holding that s. 531 would not be applicable
because the respondent had reserved a right to file a written teply on merits after
the question of jurisdiction had been decided.
The Magistrate had specifically
overruled the respondent's objection, and directed the' parties to adduce evidence,
and deferred the decision on the question of jurisdiction until after the evidence
had been recorded.
The
respondent did not file his reply on the
merits.
[10030-H]
( e) The High Court erred in holding that there was failure of justice be--
cause the respondent never led evidence. The Magistrate called upon the parties
to lead evidence. While the appellant obeyed the order, the respondent persisted·
in thinking that the Magistrate had no jurisdiction, refused to examine his witnesses on merits, and chose to confine his evidence to the question of jurisdiction.
rt004F-Hl
CIVIL APPELLATE JURISDICTION : Cri•minal Appeal No. 447 of
1974.
(Appeal by Special Leave from the Judgment and Order dated
the 14th Mr,rch 1974 of the Delhi High Court in Criminal Revision·
Petition No. 61 of 1974.
Mrs. Urmila Kapoor and Miss Kamlesh Bansal, for the appelant.
V. C. Mahajan and S. L. Aneja, for respondent.
The Judgment of the Court was delivered by
SHINGHAL, J.-This appeal by special leave is directed against
the judgment of the Delhi Hi•gh Court dated March 14, 1974, allowing the revision application of respondent Dev Raj Vijh
and dismissing the appellant's application dated March 18, 1969, under section 488 of the Code of Criminal
Procedure,
1898,
hereinafter
referred to as the Code.
Appellant Raj Kumari Vijh was married to respondent Dev Raf
v;jh in Delhi, in June 1950. It is the admitted case of the parties
that they were living separately from 1953.
The appellant filed her
"--.,,._,.
SMT. RAJ KUMAR! v. DEV RAJ. (Shinghal, J.)
999
fust application for maintenance under section 488 of the CQde, in
A
1955, but it was dismissed.
The respondent filed an applicatio1,1 for
.divorce, or judicial separation, in 1956 in Aligarh (Uttar Pradesh).
It was ultimately dismissed; on appeal on March 29, 1968.
In the
meantime the appellant filed a suit against the respondent for recovery
-of her "stridhen" in Delhi in 1956. It was decreed on appeal by the
Delhi High Court in 1967, for Rs. 6,458/-.
The appellant gave a
notice to the respondent on June 24, 1968, claiming maintenance as a
B
deserted wife.
Nothing came out of i.'t and she filed the
present
.application under section 488 of the Code in the Court of the Delhi
Magistrate on March! 18, 1969. It was stated in the application that
the appellant had lived'with the respondent in Delhi and Aligarh as
his legally wedded wife,
and
thereafter at village
Lampur, P. S.
Narela, Delhi, towards the end of December 1968, because the respondent visited her there for a settlement and for non-execution of
C
the decree which she had obtained for Rs. 6,458/- on account of her
"stridhan".
It was stated in the application that the parties lived
at Lampur as husband and wife and there was cohabitation.
The
.appellant prayed for an order allowing her Rs. 450/- per month for
maintenance .as the respondent had sufficient means but had neglected
-0r refused to maintain her.
The respondent filed a reply on April 29, 1969 in which, according to the Magistrate, there was no specific denial of the averment
that the parties last resided together at Lampur.
An objectil)n was .
however taken that as the earlier application was dismissed on February 2, 1956, the second application was barred on the principle of
res judicata. An objection was taken to the jurisdiction of the Delhi
Court on the ground that the respondent never residecj. permanently
or temporari•ly in Delhi.
We have not found it possible to go through
the reply because it has been stated by counsel for the parties that the
original record has been destroyed.
The Magistrate passed an order
for production of evidence.
The respondent thereupon prayed that
the question of jurisdiction may be decided before recording the evitlence.
That was not agreed to by the magistrate.
He made an
·order on November 19, 1969 that the question of jurisdiction must
await the recording of the evidence on the whole case.
The respondent did not challenge that order or apply for permission to file
an additional reply.
On the other hand, he asked for the holding of
an identification parade for the purpose of showing that some of the·
appellant's witnesses did not even know him.
Both the parties led
their evidence, although it appears that the respondent did not like
to avai1 of_ the opportunity which was given to him to lead evidence
on the merits.
He did not even apply for permission; to file any additional reply when the_ Magistrate recorded tthe appellant's evidence
on her application for maintenance as a whole.
Ultimateiy the Magistrate made his final order on May 21, 1973.
He took the view that there was no specific denial of the appellant's
allegation that the parties last resitled together, as husband and wife,
in village Lampur, in Delhi, towards the end of December in 1968.
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SUPREME COURT REPORTS
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He took notice of the fact that the plea of bar against the maintainability of the second applitation because of the dismissal of tthe first
application.' was. not p~essed ?Y the respondent and after referring
to the entire evidence m details, he reached the conclusion that he
had the jurisdiction to entertain the application, and granted maintenance allowance at the rate of Rs. 125/- per month, with effect'from
March 18, 1969, along with an order regarding the mode of payment
of the arrears. The respondent applied for a revis~on of that order,
and the Additional Sessions Judge referred thei case, to the High Court
on November 30, 1973, for dismissal of the application (under section
488 of the Code) on the ground that the Delhi Magistrate had n0
jurisdiction to entertain it.
As the High Court has
allowed
the
reference, and dismissed the revision application which was filed by
the appellant for an
increase in the maintenance allowance, the
appellant has come up to this Court by special leave.
In its impugned judgment dated March 14, 1974, the High Court
has recorded the finding that the parties did not reside together. at
village Lampur, and for that reason it took the view that the Delhi
Court had no jurisdiction to entertain the
appellant's
application
under section 488 of the Code.
Counsel for the appellant has vehemently urged that the finding of the, High Court is incorrect, but
as it is a finding of fact, we shall proceed pn the assumption that
it does not call for, interference in this appeal. The question however remains whether section 531 of the Code would be applicable
to the case?
The High Court has held that the section would not
De applicable, and that is why it has passed the impugned order for
the dismissal of the, application of the appellant under section 488
of the Code.
The High Court has taken that view for the following
reasons,-
(i)
(iii)
(iii)
(iv)
(v)
The objection as to juri'sdiction was raised "right at the
\
first instance by the husband".
The respondent "specifically reserved his right to file a
written reply on merits after the question of jurisdiction
was decided".
As
the respondent had "reserved hils right to lead evidence on merits, it is not a case where the
husband
deliberately gave
up his
right to lead
evidence on
merit~ ..... "
There was "obvious prejudice and failure of justice" to
the respondent as he never led evidence on the merits.
It was necessary for the appellant to prove that the respondent had refused and neglected to maintain her, and
that "obviously requires an opportunity to. be given to
the husband to provo his case, if it be one, that ho has
not refused or refuses or neglected to maintain his wife
or what his income and means is".
SMT. RAJ KUMARI v. DEV RAJ (Shinghal, J.)
1001
(vi)
(vii)
"Before a deci'sion on meriti can be given the husband
ha:s the undoubted request (sic) to lead evidence on
merits".
·
A proceeding cannot be entertained in a court w?ich has
jurisdiction by simply
taking recourse to section 531
of the Code when an objection has been taken against
its maintain;bility-, for otherwise the provision relating
to jurisdiction would
become
nugatory. Section 531
"can cure the infirmity after, the case has been fought on
merits."
'
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We have examined these grounds, but we are constrained to say that
they are no~ tenable in the facts and ciJt:umstances of this case.
Section 531 of the Code reads an follows,-
"531. No finding, llentence or order of any Crim~nal
Court shall be set aside merely . on the ground that the inquiry, trial or other proceeding in the course of which it
was arrived at or passed, took place in a wrong sessions
division, district, sub-di!vision
or other local area, unless
it appears that such error has in fact occasioned a failure
of justice."
The section therefore
relates to a defect of
jurisdiction.
As has
been stated by this Court in Purushottamdas Dalmia v. The State of
West Benga/C) those are two types; of jurisdittion of a criminal court,
namely, (1) the jurisdiction with respect to the power of the court
to try, particular kinds of offences, and (2) its territorial jurisdiction.
While the former goes to the root of· the matter and any transgression
of it makes the entirej trial voitl, the latter is not of a peremptory
character and is curable under section 531 of the Code.
Territorial
jurisdiction is provided "just as a matter of convenience, keeping in
mind the administrative point of view with respect to the work of
a particular court, the convenience of the accused who will have to
meet the charge levelled against him and the convenience of the witnesses who have to appear !lefore the Court". Sub-section (8) of
section 488 in fact provides that proceedings under the section "may
be takeDJ against any person in any distritt where he resides or is, or
where he last resided with his wife or, as the case may be, the mother
of the illegitimate child." This therefore is ordinarily th6 requirement ae to the filing of an application under sectitm 488 within the
limits of the jurisdittion of the magistrate concerned.
So where a magistrate has the "power" to try a particular application under section 48 8, and the controversy relates solely ·to his
~erritorial jurisdiction, there should, ordinarily, be no reason why
section 531 of the Code should not be applicable to the order made
by him. · It has therefore to be examined whether there were any
such circumstances in this case for which the High Court could justifiably refuse to apply the provisions of section 531.
(!) [1962] 2 SCR.
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The, first reason why the High Court has not given the benefit of
section 531 to the appellant is that an objection as to the jurisdiction
of the Delhi Court was raised by the respondent "right at the first
instance."
Counsel for the respondent has strenuously argued that
such a benefit will not be available in a case where the magistrate
knew that he had no jurisdiction, and persisted in proceeding with
the trial under the impression that section 531 of the Code, would,
at any rate, validate his order.
That,
according to the
counsel,
amounted to an order by the magistrate giving the jurisdiction to
himself by virtue of sectiton 531.
Reliance in this connection has
been placed on Radharani v. Rahim Sardar('), Sakuntala v. Thirumalayya(2), State v. Tavara Naika( 3), Sultan Chand v. Yogindra Nath
Baz (4), and Satwant Singh v. Smt. jaswant Kaur (").
As is apparent, section 531 does not enti_tle a magistrate, who is
not a magistrate of the class referred to in sub-section (1) of section
488, to proceed with an application for maintenance.
In ,fact even
a District Magistrate, a Sub-Divisional Magistrate or a Magistrate
of the first class will not .Pe entitled to proceed with such an application if he knows that the proceedings do not fall within his jurisdiction under sub-section (8) of section 488.
The true meaning of
section 531 is that while it will not uphold an order passed in proceedings wilfully taken in a wrong place, or enable a magistrate to
confer jurisdiction on himself when he knows that he has no such
jurisdiction, there is no reason why a magistrate, wqo is otherwise
duly empowered to make an order under sub-section ( l) of section
488 of the Code, cannot proceed with an application under that sub- ·
section for the purpose of deciding whether he has the territorial
juri;.>diction to entertain the application and to decide the application
on the merits if he finds that he has the territorial jurisdiction.
Section 53 l cannot thus be said to be inapplicable to a case where
there is a controversy as to the district where the praceeding should
be held, the parties lead
evidence in
support of their respective
contention
about
the
correct
place
of
the
proce~ding,
and the magistrate finds i1t necessary (after taking note of the entire
evidence on the controversy) to arrive at a decision on the basis of
the balance of probabilities. In other words, there is no reason why,
in such a ca£e, section 531 should not be applicable merely because
the magistrate, while considering the evidence relating to jurisdiction, unwittingly makes a reference) to section 531 in passing and not
for the purpose of assuming jurisdiction under it. If the magistrate,
in this case, had thought of assuming jurisdiction under section 531,
he would not have proceeded to record the evidence of the parties,
on the question of the territorial jurisdiction, or referred to it at le11gth
in his order and arrived at the decision that he had the jurisdiction.
We have gone through the cases which have been cited by the
counsel for the respondent.
Radharani and another v. Rahim Sardar
(supra)
was a case where the magistrate proceeded with the trial
(1) A.T.R. 1946 Calcutta 459.
(2) (1966) 2 M.L.J. 326.
$3) A.LR. 1959 Mysore 193.
(4) A.I.R. 1944 Peshawar 25.
(5) (1956) A.L.J. 134.
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SMT. RAJ KUMARI v. DEV RAJ (Shinglzal, !.)
.1003
in the wrong local area with his eyes open to the fact ihat he. !rad no.
territorial jurisdiction, and, the Calcutta High Court bad to observe
that the section does not confer any jurisdiction.
This is however not
su in the present case, because the Magistrate recorded the evidence
on the question of territorial jQrisdiction, and he went to the extent of
making •a reference to the entire evidence ·which was led on the point.
Moreover he took note of the fact that the respondent had not specifically dened that he lived at· village Lampur with the appellant.
. This is therefore not a case where the Magistrate proceeded with the
application even though. he had the knowledge that it did not fall
within his jurisdiction.
The same
is the position in
regard
to
Sakunta/a v. T/zirumalayya ·(supra) and it also cannot avail the respondent. We have gone through State v .. Tavara Naika
(supra).
Jt was not a case under section 488 of the Code.
What has been said
there is that the curative provisions of section 53 l should not be an
excuse for overlooking a material irregularity ·pertaining to jurisdiction when it is brought to the notice of the Court before the commencement of the trial. It does not therefore lay down anything
different from what lras been stated in Radlzarani · v. Rahim Sardar
(supra). It was a case where the accused .was committed to a wrong
sessions division, and the mistake was corrected .because the trial had
not commenced.
Sultan Chand & another v. Yogindra Nath Baz
(supra) was also not a case under section ~88 of.the Code .. Hhas
been held in that case that when the'qucstion"of jurisdiction.has been
raised before the trial magistrate, it is his duty to determine the point,·
otherwise ·the provisions •as regards· jurisdiction w~uld . never : be enforced and that section 531 cannot be applied to such a case.
As
has been stat.ed, the Magistrate in. the present case addressed. himself
to the question of jurisdiction·, ·recorded detailed evidence on it, considered the evidence in his order and reached the conclusion that the
application was maintainable in his ·court. : -·This -is' therefore
a
different case.
Satwant Singh v. Smt. Jaswant Kaur (supra) wa> a
· case under section 488 of the Code. . It has been held , there.