Jangal Prasad vs State - 1951 Supreme(SC) 81

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1951 Supreme(SC) 81

SUPREME COURT OF INDIA
20th December 1051.
FAZL ALI AND BOSE, JJ.
Jangal Prasad, Appellant
Versus
The State.
Criminal Appeal No. 61 of 1951.
Shri H. J. Umrigar, Advocate, instructed by Shri Rajinder Narain, Agent, for Appellant; Shri G. C. Mathur, Advocate, instructed by Shri P. A. Mehta, Agent, for the State.

Advocates:
G.C.MATHUR, H.J.Umrigar, P.A.Mehta, RAJENDER NARAIN

Headnote:Section 10(2) (xv)-Expenditure for the purposes of business Trust for payment of pension.
       The appellant was a banking Company. On 15.3.46 it created a deed by which it purported to create a trust for payment of pensions to the members of its staff, and a sum of Rs. two lakhs was made over to the trustees for this purpose. In the Course of the accounting year 1946-47, the bank mad6 a further payment of Rs. 2 lakhs to this fund. In its assessment year 1947-48 the appellant claimed deduction of the Sum of Rs. 2 lakhs under S. 10 (2) (xv) of the Act on the ground that it was an item of expenditure laid out or expended wholly and exclusively for the purposes of its business. This claim was rejected by the Income-tax authorities.
       Held: (1) The whole scheme of the deed invested the bank or its officers duly authorised in that behalf with the sole discretion of granting or of withdrawing, modifying or determining the pension and it was not at all obligatory on them at any time to grant any pension or to continue the same for any period whatever. The beneficiaries therefore, could not be said to have been indicated with reasonable certainty. What is more it could also be validly urged that there being no obligation imposed upon the trustees no trust in fact was created even though the moneys had been transferred to the trustees.
       (2) There is no clear indication in the deed of trust that the Bank intended the power to be regarded in the nature of a trust, inasmuch as these was no obligation imposed on the bank or its officers duly authorised in that behalf to grant any pension to any applicant. There was no duty to grant any pension at all and the pension, if granted could be withdrawn, modified or determined by the bank or its officers duly authorised in that behalf as therein mentioned. Under the circumstances it could not be said that there was a power in the nature of the trust which could be exercised by the Court if the donee of the power for some reason or the other, did not exercise the same.
       (3) There was uncertainty as regards the beneficiaries and there was an absence of any obligation to grant any pension with the result that no legal and effective trust could be said to have been created and further that the provision of Rs. 200,000 in the accounting year 1946-47 was not an expenditure or an expenditure for the purposes of the business within the meaning of S. 10(2) (xv) Indian Income-Tax Act. - Section 439-Revision-Change of mode of punishment without notice to accused.
       The Magistrate observed as follows:
       "The accused is a first offender of 18 years of age. A deterrent sentence would be highly inappropriate in this• case. I accordingly order that the accused should receive 19 stripes under S. 4 (b), Whipping Act, in lieu of the sentence provided under S. 377 I.P.C."
       The sentence imposed by the Magistrate was upheld by the Sessions Judge, but, in revision the High Court pointed out that the sentence of whipping was illegal since the appellant was not a juvenile offender and the only other relevant provision of the Whipping Act was S. 4 (b) which was not applicable to this case. The High Court accordingly set aside the sentence of whipping and sentenced the appellant to nine months rigorous imprisonment. No notice was given to the accused before this alteration in sentence.
       Held: Whether it was an enhancement or not, on the whole, the High Court should not have passed the order radically changing the mode of punishment and seriously affecting the accused without giving him an opportunity to show cause against it.

Judgement

FAZL ALI J. : The only question to be decided in this appeal relates to the sentence imposed on the appellant, and it arises in the following manner. The appellant was tried by a Magistrate of Jabalpur on the charge of having committed an offence under S. 377, Penal Code and was found guilty. While sentencing the appellant, the Magistrate observed as follows :

"The accused is a first offender of 18 years of age. A deterrent sentence would be highly inappropriate in this case. I accordingly order that the accused shall receive 10 stripes under S. 4(b), Whipping Act in lieu of the sentence provided under S. 377, I. P. C."

The sentence imposed on the appellant was upheld by the Sessions Judge of Jabalpur, but, in revision, the Madhya Pradesh High Court pointed out that the sentence of whipping was illegal since the appellant was not a juvenile offender and the only other relevant provision of the Whipping Act was S. 4(b) which was not applicable to this case. Section 4(b) provides that a sentence of whipping can be passed only in those cases where a person compels or induces another by fear or bodily injury to submit to an unnatural offence, but that was not the case here. The High Court accordingly set aside the sentence of whipping and sentenced the appellant to nine months rigorous imprisonment.

2. The sole point urged in this appeal is that the order of the High Court amounted to an enhancement of the original sentence, and it should not have been passed without giving notice to the appellant and hearing him in the matter as is provided in S. 439 Criminal P. C., and settled by a long course of decisions. It was urged on behalf of the State that there is no question of enhancement of sentence in this case. Since all that has happened is that an illegal sentence which was a nullity has been set aside by the High Court, and the court of revision which has all the powers of a court of appeal, has imposed a proper sentence on the appellant. The question is not free from difficulty, and is further complicated by the fact that the law does not indicate, except indirectly in S. 395, Criminal P. C., what sentence of imprisonment would be equivalent to a sentence of whipping. On the whole, however, we are inclined to think that the High Court should not have passed the order radically changing the mode of punishment and seriously affecting the accused, without giving him an opportunity to show cause against it.

3. There is a note dated 21-8-1951, in the order sheet of the High Court, to the following effect:

"Parties request for time to argue on the point of punishment Granted. Put up tomorrow."

It appears that before the High Court two main questions arose for consideration. They were :

(1) whether on the merits the conviction at the appellant could be sustained; and

(2) whether the sentence of whipping imposed by the Magistrate was legal in the circumstances of the case.

Presumably, the adjournment was asked for to argue the second question. There is nothing on record to show that the High Court either appreciated the necessity of issuing or did issue a notice to the accused to show cause why his sentence should not be enhanced or altered in the manner in which it has been done. If such a notice was intended to be issued, there would have been an express order to that effect in the Order sheet. There is nothing to show that the accused personally had any notice that the sentence of whipping was to be substituted by a sentence of imprisonment. In this view, we set aside the sentence under appeal, and remit the case to the High Court for its disposal according to law.

Appeal allowed.

For Citation : AIR 1953 SC 467

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