# the -circumstances, without costs. Appeal dismissed. BUDHAN CHOUDHRY AND OTHERS v. THE STATE OF BIHAR

- **Citation:** [1955] 1 S.C.R. 1045
- **Court:** Supreme Court of India
- **Decided:** 1953-08-25
- **Case number:** Civil Appeal No. 146 of 1954
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-circumstances-without-costs-appeal-dismissed-budhan-choudhry-and-others-v-296
- **Pages:** 11

## Headnote

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:S.C.R.
SUPREME COURT REPORTS
1045
held against
the
appellant on this contention.
The
1earned Judges of the High Court were of the opinion
that as the execution and attestation
took
place
at
one sitting at the residence of P.W. 1, where the testator and the witnesses had assembled
by appointment,
they must all of them have been
present
until
the
matter was finished,
and as the witnesses
-were not
-cross-examined on the question
of attestation, it could
properly
be inferred that
there was
due
attestation.
It cannot be laid down as a matter
of law
that
because the witnesses
did not state in
examination-in-
·chief that they signed the will in the presence
of the
testator, there was no due attestation.
It will depend
-0n the circumstances elicited in evidence
whether
the
attesting witnesses signed in the presence of the testator.
This is a pure
question of
fact depending
on
appreciation of evidence.
The finding of the
Court
below that the will was duly attested 1s based
on a
·consideration of all the materials,
and must
be accepted.
Indeed, it is stated in the

## Text

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:S.C.R.
SUPREME COURT REPORTS
1045
held against
the
appellant on this contention.
The
1earned Judges of the High Court were of the opinion
that as the execution and attestation
took
place
at
one sitting at the residence of P.W. 1, where the testator and the witnesses had assembled
by appointment,
they must all of them have been
present
until
the
matter was finished,
and as the witnesses
-were not
-cross-examined on the question
of attestation, it could
properly
be inferred that
there was
due
attestation.
It cannot be laid down as a matter
of law
that
because the witnesses
did not state in
examination-in-
·chief that they signed the will in the presence
of the
testator, there was no due attestation.
It will depend
-0n the circumstances elicited in evidence
whether
the
attesting witnesses signed in the presence of the testator.
This is a pure
question of
fact depending
on
appreciation of evidence.
The finding of the
Court
below that the will was duly attested 1s based
on a
·consideration of all the materials,
and must
be accepted.
Indeed, it is stated in the
judgment
of the
Additional District Judge that "the fact of due execution and attestation of the will was
not challenged
on behalf of the caveator at the
time of
the hearing
of the suit".
This contention of the appellant
must
.also be rejected.
In the result, the decision
of the
High Court is
confirmed, and this appeal 1s dismissed,
but
m
the
-circumstances, without costs.
Appeal dismissed.
BUDHAN CHOUDHRY AND OTHERS
v.
THE STATE OF BIHAR.
[ME.HAR CHAND MAHAJAN C. J., MuKHERJEA,
S. R. DAs, V1VIAN BosE, BHAGWATI, JAGANNADHADAS
and VENKATARAMA AYYAR JJ.]
Constitution of India, Al'ticle 14-Code of Criminal Procedure
~ (Act V of 1898), section 30-Whether ultra vires the ConstitutionArticle 14-Reasonable classification-Not forbidden-Test of permissible classification-Necessary conditions-Constitution-Whether
N ar-.sh Charan
Das Gupta
v.
Paresh Cha an
Das Gupta
Venkatarama
Ayyar J.
1954
December
~
1954
Budhan Chaudhry
and Othm
v.
The State of
BihM
1046
SUPREME COURT REPORTS
[1955]
assures unanimity of decisions or immunity from erroneous ~ction of
courts or executive agencies of State.
It is well-settled that while Article 14 of the Constitution for~
bids class legislation, it does not forbid reasonable classification for
the purposes of legislation.
In order, however, to pass the· test of
pern1issible classification two conditions must be fulfilled, namely,
(i) the classification must be founded on an intelligible differentia which distinguishes persons
or things
that are grouped together from others left out of the group; and,
(ii) that differentia must have a rational relation to the object
sought to be achieved by the statute in question.
The classification
may be founded on different bases; namely geographical, or accord·
ing to objects or occupations or the like.
What is necessary is· tltat
there must be nexus between the basis of classification and
the
object of the
Act under consideration.
Further Article 14 cond~mns
discrimination not only by a substantive law but also by a law of •
procedure.
The Constitution
does not assure
unanimity of d~cisions or
immunity from merely erroneous action, whether by .the courts or
the executive agencies of a State.
Section 30 of the
Code of Criminal Procedure does not infringe
the fundamental right guaranteed by Article 14 of the
Constitution.
Chiranjit Lal Chowdhuri v. The Union of India ([1950] S.C.R. ·
869), The State of Bombay v. F. N. Balsara ([1951] S.C.R. 682),
The State of West Bengal v. Anwar Ali Sarkar ([1952] S.C.R. 284),
Kathi Raning Rawat v. The State of Saurashtra ([1952] S.C.R. 435),
Lachmandas Kewalram Ahuja v. The State of Bombay ([1952] S.C.R.
710), Qasim Razvi v. The State of Hyderabad (f1953] S.C.R. 581).
Habeeb Mohamad v. The State of Hyderabad ([1953] S.C.R. 661),
The State of Punjab v. Ajaib Singh ([1953] S.C.R. 254), Yick
Wo
v. Peter Hopkins ( f1886] 118 U.S. 356; 29 L. Ed. 220), and Snowdm
v. Hughes ([19441 321 U.S. l; 88 L. Ed. 497), referred to.
CRIMINAL
APPELLATE
JuRismcnoN :
Criminal
Appeal No. 83 of 1953.
Appeal under article
132 ( 1) of the
Constitution
of India from the Judgment and Order dated
the 25th
August 1953 of the
High
Court
of Judicature
at
Patna in Criminal Appeal No. 410 of 1951.
B. K. Saran and M. M. Sinha, for the appellants.
M. C. Setalvad .. Attorney-General for
India ( R. C.
Prasad, with him) for the respondent.
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_, ..
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S.C.K
SUPREME CO{.JRT REPORTS
1047
1954. December 2.
The Judgment of the Court
was delivered by
DAs J.-This is an appeal from a judgment of
the High Court of Judicature at Patna which raises a
substantial question of law as
to
the interpretation
of the Constitution of India.
The appeal arises out of a criminal trial held in
the district of Hazaribagh in the State of Bihar. The
case against the appellants was investigated by the
local police and on the 4th June, 1951 a challan was
submitted before the Sub-Divisional Magistrate. The
Sub-Divisional Magistrate passed the following order
in the order-sheet:-
':Let the record
be
sent to the Dy.
Commar.,
Hazaribagh for transferring it to the file of the Spl.
Magistrate for trial".
On the record being placed before the Deputy Commissioner, the latter passed following order:-
"Perused
S.D.O's
order-sheet.
Withdrawn
and
transferred to the file of Mr. S. F. Azam, Magte. with
powers u/s 30, Cr. P. C. for favour of disposal".
The appellants were then tried by Mr. S. F. Azam,
Magistrate of the first class exercising powers under
section 30 · of the Code of Criminal Procedure on
charges under sections 366 and 143 of the Indian
Penal Code and each of them was convicted under
both the sections and sentenced to rigorous imprisonment for five years under section 366, Indian Penal
Code, no separate sentence having been passed under
section 143.
The appellants preferred an appeal to the High
Court of Judicature at Patna. The appeal was heard
by a Bench consisting -of S. K. Das and C. P. Sinha,
JJ. There was a difference of opinion between the
two learned Judges as to the constitutionality of sec-
.tion 30 of the Code of Criminal Procedure. S. K. Das;
· J., took the view that the impugned section. tdid not
bring about any discrimination or inequality between
persons similarly. circumstanced and consequently did
not off end the equal . protection clause of the Constitution, whi1e C. P. Sinha, J,, .was •. of ~ the opinion that
11-89 S. C. India/59
·1954
]3udhan Chaudhry
·· ·!Uld Other1
v.
-r he Stat~ of
·Bihar
Das].
i954
·-....:..
Budhan Clwiit!h,y
andOthert
v.
Tile Stat• of
Bikar
Das].·
1048
SUPREME COURT REPORTS
[1955]
the section was hit by article
14.
The appeal
was
thereupon placed before
Reuben, C. J ., who in agreement with S. K. Das, J., held
that section 30 did not
violate the inhibition of article 14. The learned
Chief
Justice upheld the conviction but reduced
the sentence. On application
by the appellants
the
High
Court granted them a certificate
under
article 132 (1)
and the present appeal has been filed accordingly.
The learned Advocate
appearing
in
support
of
the appeal wntends before us, as was done before the
High Court, that there had been an infraction
of the
fundamental rights
guaranteed
to
the
appellants
under article 14 of the
Constitution
of
India.
The
complaint is that the appellants had been tried
by
a
section 30 Magistrate and not by a Court of
Session.
A section 30 Magistrate is enjoined by that section ·to
try the case brought before him as a
Magistrate
and
accordingly in cases like the present. case he will follow
the warrant procedure which is different
from the procedure followed by a Court of Session.
The substance
of the grievance
is that a
trial before
the
Sessions
Judge is much more advantageous to the accused person en that he gets the benefit of the commitment
proceedings before a
Magistrate and
then a trial before
the Sessions Judge with the aid of the jury or assessors.
It has not been seriously
questioned
before
us
that in spite of the risk
of imposition
of a
punishment heavier than what a section 30 Magistrate
can
inflict, a trial by a Sessions Judge is of greater
advantage to the accused than a trial
before
a
Magistrate
under the warrant procedure.
We
have,
therefore,
to see whether this appearent
discrimination
offends
against the equal protection
clause of
our
Constitution.
The provisions of article 14 of
the Constitution
have come up for discussion
before this Court
in a
number of cases, namely, Chiranjit Lal Chowdhurt v.
The Union of India('),
The State of Bombay v. F. N.
Balsara( '), The
State of
West Bengal v. Anwar Ali
Sarkar( 3 ), Kathi Raning Rawat v. The State of Sau-
(,) [1950] S.C.R. 869.
(2) [1951] S.C.R. 682.
(3) [1958] S.C.R. 284.
..
.,.
/
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S.C.R.
SUPREME COURT REPORTS
1049
rashtra( 1), Lachmandas Kewafram Ahuja v. The" State
of Bombay(2) and Qasim Razvi v. The State of Hyderabad(3) and Habeeb Mohamad v. The State of Hyderabad ( 4).
It is, therefore, not necessary i:o enter upon
any lengthy
discussion
as to
the meaning, scope and
effect of the article in question.
It is" now well-established that
while
article 14 forbids class
legislation,
it does not forbid reasonable
classification
for
the
purposes
of legislation.
In order, however,
to
pass
the test of
permissible
classification two
conditions
must be · fulfilled, namely, ( i) that
the classification
must be founded on an intelligible
differentia
which
distinguishes
persons or things
that are grouped together from others left out of the group and. (ii) that
that differentia must have a rational
relation to the
object sought to be achieved by the
statute in question.
The classification _may
be founded on different
bases; namely, geographical, or
according to
objects
or occupations or the like.
What is ·necessary is that
there must be a nexus between the basis of classification and the object of the
Act under
consideration.
It is also
well-established
by
the
decisions
of this
Court that article
14 condemns
discrimination
not
only by a
substantive
law but also by a law of procedure.
The contention
now put forward as to the
invalidity of the trial of the appellants has, therefore
to be tested in the light of the principles so laid down
in the decisions of this Court.
There are no less than four
modes
of trial prescribed by the
Code of Criminal
Procedure,
namely,
( i) trial of sessions cases, (ii) trial of
warrant
cases,
(iii) summary trials and (iv)
trials before a
High
Court and a Court of Session
and the procedure
in
each of these trials is different.
Section 28 of the Code
of Criminal Procedure which is to be found in Chapter III which deals with "Powers of Courts" reads
as
follows:-
"28. Subject to
the
other
provlSlons
of
this
Code, any offence under the
Indian Penal
Code may
be tried-
(I) [ 1952] s. C.R. 435.
(3) [1953] S.C.R. 581.
(2) [1952] S.C.R. 710.
(4) [1953] S.C.R. 661.
1954
Budhan Chourlhry
and Others
v.
The State of
Bihar
Das].
1954
Bwlhan Chaudhry
and Others
v.
The State of
Bihar:
DasJ.
1050
SUPREME COURT REPORTS
(a) by the High Court, or
(b) by the Court of Session, or
(c) by
any
other
Court
by
offence is shown in the eighth column
schedule to be triable".
Section 30, as it now stands, provides :-
which
of the
[1955]
such
second
"30. In
Assam,
Madhya
Pradesh,
Punjab,
Oudh, Madhya
Bharat, Hyderabad,
Mysore, Patiala
and East Punjab States Union and
Rajasthan,
in all
Part C States and in those parts of the
other
States
in which there are Deputy
Commissioners
or
Assis··
tant Commissioners the
State
Government may,
notwithstanding anything contained m section 28 or section 29, invest the District Magistrate or any Magistrate of the first class, with power to try as a Magistrate all offences not punishable with death".
Section 34 puts a limit to the power of punishment
of
a section 30 Magistrate in terms following:-
"34. The
Court of a
Magistrate,
specially
empowered under section 30,
may
pass
any
sentence
authorised by law, except a sentence of death
or
of
transportation for a term
exceeding
seven
years
or
imprisonment for a term exceeding seven years".
It will be noticed
that
section 28
begins with
the
clause "subject to the other prov1S1ons of this Code".
This means that the section
and the second schedule
referred to therein are controlled by
the
other provisions of the Code including the provisions
of
section
30. Further, the text of section 30 itself quite clearly
says that
its provisions will operate "notwithstanding
anything contained m
section
28
or
section
29".
Therefore, the provisions of section 28 and the second
schedule must give way to the provisions
of
section
30.
It is not, however, claimed by the
learned Attorney-General
that section 30 abrogates
or
overrides
altogether the prov1s1ons of section 28 and the second
schedule m the sense that in the specified territories
Magistrates empowered under section 30 become
the
only tribunal competent to try all offences not punishable with death to the exclusion of all other
Courts
mentioned in the 8th column of the second
schedule.
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S.c.R.·
SUPREME COURT REPORTS
1051
If that had been the position,
then there tould . be no
question of discrimination,
for,
in
that
situation,
section 30 Magistrate's Court would be the only
Court
in which all offences not punishable with death would
become triable.
As already stated, this extreme claim
is ·not made by the learned Attorney-General.
The
effect of the State Government investing the District
Magistrate or any Magistrate of the first class with
power under section 30 is to bring into being an additional court in which all offences not punishable
with
death become triable. . In other words,
the
effect of
the exercise of authority
by the
State
Government
under section 30 is, as it were, to
add in
the
8th
column of the second schedule the
Magistrate
so
empowered as a Court before whom all offences not
punishable with death will also be triable. The question
is whether this result brings about any inequality
before the law and militates against
the
guarantee
of
article 14.
Section 30, however,
empowers the
State
Government in· certain areas to invest the
District Magis1
trate or any Magistrate of the first class with power
'--.
to try as a Magistrate all offences not punishable with
death.
There is an obvious
classification
on
which
this section is based, namely, that such power may be
conferred on specified
Magistrates in certain
localities
-
only and in respect of some offences only, namely, all
offences other than those punishable
with death.
The
Legislature understands
and correctly appreciates
the
needs of its own people which may
vary
from place
-+ ' to place.
As already observed, a classification
may
be
based
on
geographical
or territorial
considerations.
An instance of such territorial classification is to be
found in the
Abducted
Persons (Recovery and Restoration) Act, 1949 which came up for discussion· before
this Court and was upheld as valid in The State of
Punjab v. Ajaib Singh( 1 ). S. K. Das, J., and the learned
Chief Justice· have in their respective
judgments referred to certain circumstances, e.g. the ·distance between
-...:;
the place of occurrence and
the
headquarters. ; where
(1) [1953] S.C.R. 254.
i95.f
Budhan Chaudhry ·
and Others
v.
The State of
Bihar
Das J.
'!954-:
Budh,,,;°Ch~wihty
' and ·Othirs
v.
Th~ ·state of
Bihar
zi~,j.
1052
SUPREME COURT REPORTS.
[I955J
the Court of Session functions at considerable . intervals, the inconvenience .of bringing up witnesses
from
the interior, the difficulty of .finding· .in .the backward
or out of the way places sufficient . number· of suitable
persons to .act as jurors .or assessors, all of which make
this
classification . quite a· reasonable
one;
In this
sense, the section -itself does not bring ··about any discrimination whatever. · The • section
only
authorises.
the State
Government · to invest
certain · Magistrates
with poweF .to try all
offences · not , punishable
with
death ·and this authority . the
State·. can: exercise
only
in the . specified ·places.
.. ' If the:· State invests any
Magistrate with powers under section 30 anybody who
commits any
offence not punishable: with 'death
and
triable by a
Court of . ·•Session
under section
'28 read
with the second schedule is also liable to be tried by
the section 30. Magistrate. The risk of such liability
falls alike .. upon all persons committing such ·an offence.
Therefore, there is no discrimination m
the · section .
itself.
The learned counsel for the appellants, however,
contends,. on the .strength
of
the decision
of
the
Supreme 'Court of America in Yick Wo 'v. Peter· Hopkins(') that "though a law. be fair on its face
and
impartial in
operation,. yet,
if it
is
administered
by
public authority with an evil eye and an unequal hand
so as practically to· make illegal
discrimination
between persons in similar
circumstances
materially
to
their rights, the denial· of. equal justice is still within
the prohibition of the . :Constitution".
The contention
is that although the section· itself may not
be discri-·
minatory, it may lend itself to. abuse bringing
about
a discrimination between
per.sons
accused .. of offences·
of the saine kind, .for the. police
may send up a person
accused·: of an offence under section 366- to a· section 30
Magistrate and the
police
may send another
person
accused of an offence· under · the
same section to a
Magistrate who can commit .the accused to .. the
Court
of Session. , It is necessary. to examine this contention
with dose scrutiny.
·
When a .case. ·under section· 366, Indian .Penal.
(1) [1886] 118 U.S. 356; 29 L. Ed. 220.
,;··.
'r.
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,.
S.C.R.
SUPREME COURT REPORTS
1053
Code, which is a case triable by a Court of Session
under the second schedule, is put up
before a· section
30 Magistrate, the section 30 Magistrate is . not necessarily bound to try the case himself.
Section 34 limits
the power of . the section 30 Magistrate
in . the matter
of punishment. · If the section 30 Magistrate after ·recording
the evidence and before framing
a charge
feels that in the
facts and circumstances of the
case
the maximum sentence which he . can inflict ·will not
meet the ends of justice he may, ·. instead · of disposing
of the case himself, act under section 347 and commit
the accused to the
Coun of Session.
Here, . :whether
the accused
person
shall be tried by the section
30
Magistrate .. or by the Cowt of Session is decided not
. py the executive but is decided according to the discretion judicially exercised by
the section
30 Magistrate
himself. Take the case of another .person accused
of
an offence under
section 366 which is sent up by the
police to a Magistrate . who is not empowered
under
section 30.
Such Magistrate after· perusing. the challan
and other relevant papers may, if he thinks . that
the
ends of justice will be met 'if the case is tried . by a
section 30
Magistrate, submit the case to the
District
Magistrate with his own recommendations
for such
action as the latter may think fit to take
under
section 528 of the Code of Criminal Procedure.
That is
what was done in the instant case.
On the other hand,
he may take evidence under section 208 and after the
evidence has been taken, make up his • mind judicially
whether he should proceed · under section 209 or section 210.
He may consider
that
in the facts
and
circumstances
of the
case disclosed in the evidence
the ends
of justice
require that the
accused
person
should be committed to the Coun of Session
and in
that event he will · proceed to
frame
a charge
and
follow the provisions of sections 210 to 213.
If, however,· the
Magistrate is satisfied
on the facts
of the
case that the ends of. justice will be sufficiently met
if
the accused is tried by a section 30 Magistrate having
jurisdiction in, the matter, •the Magistrate may
report
to the : District Magistrate .and the latter may, in his
discretion, withdraw the case under · section 528 · 9f the
•.1954
BUtihaii Choiit/hiy
and Others
v.·
The State of
Bi!uzr
"Das].
:1954
BiJilhan Chouabiy
and. Others
V•
"l;"he St.U'.of
Bihilr
Das]•
J054
SUPREME 'COURT REPORTS
[1955]
Co?e ?f Criminal Procedure to himself . and may
en~
qmre mto or try such case himself or refer it for ·enquiry or trial ·to any -other
Magistrate
competent
to
try the same. · fo such ·a case there is exercise of judicial discretion at two stages,
namely;
under
section
209 by the Magistrate before
whom the
accused was
sent up for enquiry and also by the District
Magistrate acting under section 528 of the · Code of
Criminal
Procedure. · It is thus clear· that the ultimate decision
as to whether a person
charged · under
section 366
should be tried by the Court of Session or by a section
30 Magistrate does not depend merely
on
the
whim
or idiosyncracies of the police or the executive
Government but depends ultimately on the
proper
exercise of judicial discretion by the Magistrate
concerned.
It is suggested
that discrimination
may
be brought
about either by- the
Legislature or the
Executive
or
even the Judiciary and the inhibition
of
article
14
extends to all actions of the State denying equal protection of the laws whether it be the action of anyone
of the three limbs of the State.
It has,
however, to
be remembered
that, in the' language of
Frankfurter,
J., in Snowden v. Hughes('), "the
Constitution does
not assure uniformity of decisions
or
immunity
from
merely erroneous , action, whether by the
Courts
or
the executive agencies of a State".
The judicial decision must of necessity depend on the facts
and circumstances of each particular case and what may superficially appear to be an
unequal
application
of the
law may not necessarily amount to a denial
of equal
protection of law unless there is shown
to
be present
in it an element of intentional
and
purposeful · discnnunation.
(See per
Stone, C.J.,
in
Snowden
v.
Hughes (supra).
It may be mentioned at once
that
in
the present case there is no suggestion ·whatever
that . there . has been at any stage any
intentional or
purposeful
discrimination
as
against . the
appellants
by the Sub-Divisional Magistrate or the District Magistrate or the section 30 Magistrate who
actually tried
the accused.
Further, the: discretion of judicial ·officers
is not arbitrary arid the law provides for revision by
(1) (1944) 321 JJ.S. 1; 88 L. Ed.497.
.. A-.
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S.C.R.
SUPREME COURT REPORTS
1055
superior
Courts of orders passed by the
Courts.
In such
circumstances,
there is
ground for · apprehending any
capnc1ous
tion by judicial tribunals.
Subordinate
hardly
any
discriminaOn the facts and circumstances of this case we find
<>Urselves in agreement with S. K. Das, J., and Reuben,
C.J., and hold that no case of infringement of fundamental right under Article 14 has been made out.
In
the circumstances, we dismiss this appeal. .
Appeal dismissed.
BHATARAJU NAGESHWARA RAO
fl.
1
THE HON'BLE JUDGES OF THE MADRAS
HIGH COURT AND OTHERS.
[MuKHERJEA, S. R. DAs and VIVIAN BosE JJ.]
Procedu·re-Supreme Court-Suspension of Advocate by High
Court-Appeal to Supreme Court-Respondents to be impleaded in
such appeal-Indian Bar Councils Act (XXXVIII of 1926), s. 12.
y
It is wrong and inappropriate to implead the Judges of the High
"" Court as respondents in an appeal preferred to the Supreme Court by
an Advocate against whom .an order of suspension was passed by the
High Court under s. 12 of the Indian Bar Councils Act, 1926. In
such appeal the proper respondents are the complainant if any, the
Bar Council or Secretary thereof and the Advocate-General of the
State concerned.
CIVIL
APPELLATE
JURISDICTION :
Civil
Appeal
No. 146 of 1954.
·-+
Appeal by Special Leave from the Judgment
and
..
Order dated the 17th day of
December, 1952,
of
the
High Court of Judicature at Madras in Referred
Case
No. 45 of 1952 arising out
of the
Report dated
the
27th day of March, .1951, of the
Court
of
District
Judge, Krishna in C.M.P; No. 123 of 1951.
S. P. Sinha,
(K. R. Chaudhary and Sardar
Bahadur, with him), for the appellant .
.,.:;
R. Ganapathy Iyer and P. G. Gokhale, for
respondent No. L
1954
Budhan GhOudhry
and Others
v·.
TheSta~'oj
Bihar
Das].
1954
Dectmber 3