BUDHAN CHOUDHRY AND OTHERS versus THE STATE OF BIHAR

:S.C.R.

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 testa-tor 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 matter of law that be-cause 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 testa-tor. This is pure question of fact depending on appreciation of evidence. The finding of the Court below that the will was duly attested 1s based on ·consideration of all the materials, and must be ac-cepted. Indeed, it is stated in the judgment of the Additional District Judge that "the fact of due execu-tion 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 Constitution-Article 14-Reasonable classification-Not forbidden-Test of per-missible classification-Necessary conditions-Constitution-Whether

N ar-.sh Charan Das Gupta v. Paresh Cha an Das Gupta Venkatarama Ayyar J.

December

Budhan Chaudhry and Othm v. The State of BihM

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 diff-erentia which distinguishes persons or things that are grouped to-gether from others left out of the group; and,

(ii) that differentia must have 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 substantive law but also by 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 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.

CRIMINAL APPELLATE Appeal No. 83 of 1953.

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.

S.C.K SUPREME CO{.JRT REPORTS

1954. December 2. The Judgment of the Court was delivered by DAs J.-This is an appeal from judgment of the High Court of Judicature at Patna which raises substantial question of law as to the interpretation of the Constitution of India.

The appeal arises out of 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 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 Com-missioner, 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 imprison-ment 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 Bench consisting -of S. K. Das and C. P. Sinha, JJ. There was 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 Consti-tution, whi1e C. P. Sinha, J,, .was •. of ~ the opinion that

11-89 S. C. India/59

]3udhan Chaudhry ·· ·!Uld Other1 v. -r he Stat~ of ·Bihar Das].

i954 ·-....:.. Budhan Clwiit!h,y andOthert v. Tile Stat• of Bikar Das].·

S.C.R. SUPREME COURT REPORTS

rashtra( [1]), Lachmandas Kewafram Ahuja v. The" State of Bombay(2) and Qasim Razvi v. The State of Hydera-bad(3) and Habeeb Mohamad v. The State of Hydera-bad ( [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-estab-lished 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 to-gether from others left out of the group and. (ii) that that differentia must have rational relation to the object sought to be achieved by the statute in ques-tion. 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 nexus between the basis of classifica-tion 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 substantive law but also by law of pro-cedure. 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 pres-cribed by the Code of Criminal Procedure, namely, ( i) trial of sessions cases, (ii) trial of warrant cases, (iii) summary trials and (iv) trials before High Court and 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 Chap-ter 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. (2) [1952] S.C.R. 710. (3) [1953] S.C.R. 581. (4) [1953] S.C.R. 661.

Budhan Chourlhry and Others v. The State of Bihar Das].

y 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 addi-tional 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 em-powered as Court before whom all offences not punishable with death will also be triable. The question is whether this result brings about any inequality be-fore the law and militates against the guarantee of article 14. Section 30, however, empowers the State Gov-ernment in· certain areas to invest the District Magis-1 trate or any Magistrate of the first class with power '--. to try as 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, 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 Restora-tion) 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 refer-red 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.

S.C.R. SUPREME COURT REPORTS

Code, which is case triable by Court of Session under the second schedule, is put up before a· section 30 Magistrate, the section 30 Magistrate is . not neces-sarily 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 ·re-cording the evidence and before framing 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 discre-tion 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 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 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 sec-tion 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 sec-tion 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 charge and follow the provisions of sections 210 to 213. If, how-ever,· 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 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

•.[1]954

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

Co?e ?f Criminal Procedure to himself . and may en~ qmre mto or try such case himself or refer it for ·en-quiry or trial ·to any -other Magistrate competent to try the same. · fo such ·a case there is exercise of judi-cial 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 Magis-trate acting under section 528 of the · Code of Criminal Procedure. · It is thus clear· that the ultimate decision as to whether person charged · under section 366 should be tried by the Court of Session or by section 30 Magistrate does not depend merely on the whim or idiosyncracies of the police or the executive Gov-ernment but depends ultimately on the proper exer-cise 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 pro-tection 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 State". The judicial deci-sion must of necessity depend on the facts and circum-stances of each particular case and what may super-ficially appear to be an unequal application of the law may not necessarily amount to denial of equal protection of law unless there is shown to be present in it an element of intentional and purposeful · dis-.. A-. cnnunation. (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 Magis-trate 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.

S.C.R. SUPREME COURT REPORTS

superior Courts of orders passed by the Subordinate Courts. In such circumstances, there is hardly any ground for · apprehending any capnc1ous discrimina-tion by judicial tribunals. On 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 funda-mental right under Article 14 has been made out. In the circumstances, we dismiss this appeal. .

Appeal dismissed.

BHATARAJU NAGESHWARA RAO

fl. 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.

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 Baha-dur, with him), for the appellant . R. Ganapathy Iyer and P. G. Gokhale, for respon-dent No. L

Budhan GhOudhry and Others v·. TheSta~'oj Bihar Das].

1954 Dectmber 3