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1953 DIGILAW 266 (MAD)

Public Prosecutor v. K. Sankunny and Others

1953-08-26

BALAKRISHNA AYYAR

body1953
Judgment :- The respondents in the first six of these seven appeals live in Alleppey or Quilon, two towns in Travancore. During the financial years 1945-46, 1946-47 and 1947-48 they sold various quantities of goods to firms in Fort Cochin which is a part of the Madras State. In 1948 they were assessed to sales tax in respect of their transactions during these 3 years. As they failed to pay the tax levied on them, they were prosecuted under Section 15(b) of the Madras General Sales Tax Act, before the Sub-Divisional Magistrate, Fort Cochin, who convicted them. On appeal the Session Judge, Kozhikode, acquitted all of them except one, viz., the appellant in C.A. No. 40 of 1951 on his file (corresponding to Crl. R.C. Nos. 778 and 655 of 1952 in this Court) whose conviction was confirmed in respect of the tax due from him for the period from 1st January, 1948, to 31st March, 1948, and the sentence being however reduced. The State has appealed against the acquittals. The respondent in Criminal Appeal No. 532 of 1952 was prosecuted for offences under Sections 235 and 243, Indian Penal Code. The First Assistant Sessions Judge, Madurai, acquitted him, and, from that acquittal also, the State has preferred an appeal. Mr. Vasantha Pai, the learned counsel for the respondents in Criminal Appeals Nos. 387 to 392 of 1952 and Mr. Veeraswami for the respondent in Criminal Appeal No. 532 of 1952 have taken the preliminary objection that these appeals by the State are incompetent because, according to them, Section 417, Criminal Procedure Code, contravenes Article 14 of the Constitution and is therefore ultra vires. This is how Mr. Pai developed his thesis. In every criminal trial the accused and the prosecutor are in the position of litigants before the Court, and, the circumstance that the prosecutor is a State makes no difference to its legal status before the Court. The judgment, whether of acquittal or conviction terminates the trials, and from the judgment, the parties must have equal rights of appeal - the accused if he is convicted and the State if the accused is acquitted. But, the rights of appeal which have been actually conferred by the Criminal Procedure Code are very unequal in their nature. The judgment, whether of acquittal or conviction terminates the trials, and from the judgment, the parties must have equal rights of appeal - the accused if he is convicted and the State if the accused is acquitted. But, the rights of appeal which have been actually conferred by the Criminal Procedure Code are very unequal in their nature. The State has been singled out for favourable and discriminatory treatment by its being given the right to appeal under Section 417, Criminal Procedure Code, direct to the High Court; whereas an accused person has to appeal to the District Magistrate or the Sub-Divisional Magistrate if he has been convicted by a Magistrate of the second or third class and to the Sessions Judge if he has been convicted by a Magistrate of the first class or in certain cases by an Assistant Sessions Judge. Besides, the state has been given a right to appeal an appellate order of acquittal also while an accused person is confined to a revision. Nor does the discrimination stop here. There is a further discrimination made by the Code between different classes of prosecutors or complaints. When a complaint brought by a private individual ends in an acquittal he is given no right of appeal, but the State is, All this amounts to "class discrimination, " the class in whose favour the discrimination is made being the State.Anticipating the argument that even assuming that there is discrimination, there is a reasonable basis it, Mr. Pai stated that the Criminal Procedure Code is an enactment of the 19th century when this country was under an alien monarchy and that therefore the plea of reasonable classification is not open to the State because the idea of classification was then unknown to or at least unrecognised in Indian Statutes. Again, even if we can project into the past the ideas of to-day, what was a reasonable classification in 1898 cannot be treated as a reasonable classification to-day. In 1898, a right was given to the State to appeal against acquittals in order to enable the foreign authority to more effectively maintain its hold on the country and to protect foreign interests. Mr. Pai went on to say that the classification, assuming there was a classification, is arbitrary and unreasonable. In 1898, a right was given to the State to appeal against acquittals in order to enable the foreign authority to more effectively maintain its hold on the country and to protect foreign interests. Mr. Pai went on to say that the classification, assuming there was a classification, is arbitrary and unreasonable. He wound up by saying that the discrimination he commented on, arises on the terms of the section itself and that it contravenes the explicit direction in the Constitution that there should be equality before the law. To support his contentions he referred to the decision of the Supreme court in State of West Bengal v. A. A. Sarkar. The facts there were these : The State of West Bengal passed an Act "to provide for the speedier trial of certain offences." Section 3 of the Act empowered the State by notification in the official Gazette to constitute special Courts, and Section 4 empowered the Government to appoint Special Judges to preside over such Courts. Section 5(1) ran thus :- "A special Court shall try such offences or classes of offences or cases or classes of cases as the State Government may by general or special order in writing, direct." The Calcutta High Court held that this section was unconstitutional. Harries, C.J., expressed the view that the provision was discriminatory and violative of Article 14 of the Constitution in so far as it purported to vest in the State Government an absolute and arbitrary power to refer to a Special Court for trial "any cases", which must include an individual case. The Supreme Court, on appeal, upheld the view of the Calcutta High Court by a majority of six to one.Mr. Pai argued that Section 417 of the Criminal Procedure Code empowers the State to pick and choose particular cases in respect of which it would prefer an appeal. It vests in the State power to harass particular and individual persons who have been acquitted by preferring appeals against their acquittal. The section therefore falls within the mischief of the rule on the basis of which the West Bengal enactment was held to be bad. Mr. Pai next referred to Moti Lal v. Uttar Pradesh Government 1951 AIR(All) 257 (F.B.)) where the Court, by a majority held that the "State" is a "person" within the meaning of Article 14 of the Constitution. Mr. Pai next referred to Moti Lal v. Uttar Pradesh Government 1951 AIR(All) 257 (F.B.)) where the Court, by a majority held that the "State" is a "person" within the meaning of Article 14 of the Constitution. Therefore, he argued, the "State" is bound to ensure equality before law and equal protection of the laws not merely as between different citizens or persons but also as between itself and any citizen or person. Mr. Veeraswamy, after endorsing the contentions of Mr. Pai that there is no rational basis for making a distinction between the State and a private complainant, sought to make a further point, viz., that the power to appeal under Section 417, Criminal Procedure Code, has been conferred without the legislature having laid down any principles for the guidance of the State Government. He contrasted this provision with the more explicit directions given in Section 411-A of the Criminal Procedure Code. Noticing that Article 13(1) of the Constitution provides, "An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court ............ (c) certifies that the case is a fit one for appeal to the Supreme Court" and does not lay guiding rules for the determination of what is fit, Mr. Veeraswamy remarked that the discretion is given under the Article to the judiciary, whereas under Section 417, Criminal Procedure Code, the discretion is given to the executive branch of the Government, and, that this makes a difference. He then read various passages from the judgments in Kathi Raning Rawat v. State of Saurashtra and Kedar Nath v. State of West Bengal and remarked that none of the circumstances which the Supreme Court held in these two cases to be sufficient to save the laws impugned before it existed in the present case. He also sought to reinforce his argument by reference to various passages from the text book of Wills and of Weaver on Constitutional Law.On page 393 Weaver writes :- "The equality of rights is a principle of republicanism ...... He also sought to reinforce his argument by reference to various passages from the text book of Wills and of Weaver on Constitutional Law.On page 393 Weaver writes :- "The equality of rights is a principle of republicanism ...... The guiding principle of this guaranty is that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed." * At page 404 the author goes on, "Discrimination may exist in the administration of the laws, and it is the purpose of the equal protection clause to secure all the inhabitants of the State from intentional and arbitrary discrimination arising in their improper or prejudiced execution, as well as by the express terms of the law itself ............... It is well understood that a statute or provision, not objectionable on its face, may be adjudged unconstitutional because of its effect in operation or because it vests in officers, boards or administrative agencies unregulated official discretion." * The mischief of Section 417, Criminal Procedure Code, Mr. Veeraswamy concluded, lies in that the legislature has left the selection of cases in which there should be appeals from acquittals to the absolute discretion of the State Government without laying down any selective principle on the basis of which that discretion is to be exercised. The individuals, whose acquittals are to be challenged in appeal, are not to be selected on the basis of any reasonable or understandable rule or principle. No differentia, let alone any rational differentia, can be gathered either from the section or from other portions of the Code. Even assuming that some sort of a classification can be gathered, there is no nexus between the classification and the objective sought to be attained. The field is left open to arbitrariness and caprice. On the decision in Moti Lal v. Uttar Pradesh Government 1951 AIR(All) 257 (F.B.)) certain observations may be made. (1) That was a case in which the State, with a view to create a monopoly of bus transport for itself, refused licenses to private individuals to ply buses, and, the decision of the Court was that the State, by reason of Article 14 of the Constitution, discriminated in its favour and against the citizens. (1) That was a case in which the State, with a view to create a monopoly of bus transport for itself, refused licenses to private individuals to ply buses, and, the decision of the Court was that the State, by reason of Article 14 of the Constitution, discriminated in its favour and against the citizens. It will be appreciated that there is a distinction between certain obligations which the State must discharge if it is to continue as a State and certain other activities which are not so vital to its character and on which it may or may not embark at its discretion. The operation of road transport is a business enterprise in which the State may or may no engage itself at its option but the preservation of law and order is not such an optional function; it is an essential part of the duty of the State. To the proposition that when the State embarks on activities which are open to private citizens it must not claim advantages or privileges which are denied to private citizens, one may be inclined to assent; but, one may not agree to an extension of the proposition to the territory where the State has a paramount duty of its own, a duty which does not rest on any citizen as such; as for instance the preservation of order. The duty of the State to apprehend offenders and see that they are punished in accordance with the law of the land is essentially different from a commercial activity like that of operating buses or other forms of road transport. The case in Moti Lal v. Uttar Pradesh Government 1951 AIR(All) 257 (F.B.)) is distinguishable from the case before me on this ground (2) I notice that the Chief Justice, who formed one of the five learned Judges who decided the case in Moti Lal v. Uttar Pradesh Government 1951 AIR(All) 257 (F.B.)) did not entirely subscribe to the proposition that the State was a "person" within the meaning of Article 14 of the Constitution. He observed, "if the word 'person' in Article 14 is interpreted to include the State then the provisions of Article 14 would appear to be in conflict with the provisions of Article 289." * (3) In this Court, a different view of the matter has been taken. In C.M.P. Nos. 6517 etc. He observed, "if the word 'person' in Article 14 is interpreted to include the State then the provisions of Article 14 would appear to be in conflict with the provisions of Article 289." * (3) In this Court, a different view of the matter has been taken. In C.M.P. Nos. 6517 etc. of 1951, Rajagopalan, J., observed :- "The legislature and the Government of the State of Madras is a 'State' within the meaning of Article 12 of the Constitution. Neither the legislature nor the Government of the State of Madras can be a 'person' as that expression has been defined by Section 3, clause 39 (clause 39 is probably a mistake for 42) of the General Clauses Act read with Article 367(11) of the Constitution ................... As I have already pointed out there can be no occasion when either the Legislature or the Government either of the Union or of one of the States can ever be viewed as a juristic person within the meaning of the Constitution." * (4) Article 12 of the Constitution defines "the State" as including besides the Government and Parliament of India the Government and the legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Article 14 reads, "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." Article 367(1) of the Constitution makes the General Clauses Act, 1897, applicable to the construction of the Constitution subject to any adaptations and modifications that might be made therein under Article 372, and, subject also to the context. Section 3(42) of the General Clauses Act reads thus :- "'Person' shall include any company or association or body of individuals, whether incorporated or not." Article 14 of the Constitution is in its terms very wide and intended to comprehend a large variety of situations and circumstances. When in the context of certain given facts what we call the State is a local authority, what Article 14 does is to prohibit that local authority from discriminating between other persons in relation to whom it exercises authority. When in the context of certain given facts what we call the State is a local authority, what Article 14 does is to prohibit that local authority from discriminating between other persons in relation to whom it exercises authority. When in another context of facts what we call the State is the Legislature or the Government of the State enumerated in the First Schedule to the Constitution what Article 14 does is to prohibit the Legislature and the Government of the State from discriminating between "persons", including in that word juristic persons like local boards and authorities in relation to whom the legislature or the Government of the State exercises jurisdiction. I am unable to read Article 14 as requiring that the State should not discriminate as between itself and the "persons" over or in relation to whom it exercises jurisdiction. The words actually used do not seem to me be capable of that meaning. Article 14 is a direction to the "State". The State is so to speak required to "hold the ring"; it is constituted an umpire and required to see that fair play is observed, and, when a direction is given to an umpire to observe fair play it seems to go without saying that the umpire cannot be a player. To hold otherwise would have some startling results. Where a State is a provincial legislature, or a municipal council and it levies a tax or imposes a rate and proceeds to collect such tax or rate, it is clearly discriminating in favour of itself. If Article 14 is to be understood as meaning that a State Legislature or Municipal Council should maintain "equality" between itself and the persons resident within its area how can the State or Municipality claim to collect any taxes or rates. It was replied that the Constitution contain express provision in that behalf. That is true; but to the extent that such provision exists it would be in conflict with Article 14. I prefer the view that has been taken in this Court to that taken in Moti Lal v. Uttar Pradesh Government 1951 AIR(All) 257 (F.B.)).I shall now examine some of the other contentions raised by Mr. Pai. That is true; but to the extent that such provision exists it would be in conflict with Article 14. I prefer the view that has been taken in this Court to that taken in Moti Lal v. Uttar Pradesh Government 1951 AIR(All) 257 (F.B.)).I shall now examine some of the other contentions raised by Mr. Pai. Our Criminal Procedure Code has been in operation for several decades and it classifies litigants before criminal Courts into prosecutors or complainants on the one side and accused persons on the other; and it confers differing rights and imposes differing obligations on persons in each of these two categories. Thus the accused starts with a presumption in his favour that he is innocent. He gets the benefit of any reasonable double that the circumstances raise. He cannot be compelled to go into the box and testify against himself. He is not bound to answer questions put to him under Section 342, Criminal Procedure code, and, if he answers falsely, he cannot be proceeded against. Subject to certain exceptions, no confession he may have made to a police officer may be used against him - nor, subject again to certain exceptions can evidence of his bad character be adduced against him. On the other hand, if the offence with which he is charged is a non-bailable offence he is liable to be detained in jail till the conclusion of the trial. The position of complainants and prosecutors is entirely different. The complainant would be expected to go into the box and give evidence on oath. He can be cross-examined about his character, and to all the questions addressed to him when he is in the box he is bound to return true answers. On the other hand, he is not locked up like the accused or required to furnish bail for his appearance. Indeed, if the contention of Mr. Pai were right and I were to hold that the differentiation between complainant and accused which runs right through the Criminal Procedure Code is no longer justified by reason of Article 14 of the Constitution, and, that in consequence complainant and accused should be treated alike, the prosecutor also should be liable to detention in jail just like the accused, till the termination of the criminal proceedings. That would be a startling result. That would be a startling result. The distinction between prosecutor and accused, which the Code makes, amounts to a classification, and, it seems to me, an eminently reasonable classification. Incidentally, the situation which will be brought about by the acceptance of the contention of Mr. Pai that no ideas of classification can be used to uphold the provisions contained in the Criminal Procedure Code because it is an enactment of 1898, would serve to demonstrate its unsoundness.In respect of the observation that the State is given a right to appeal against an acquittal, while such a right is denied to a private prosecutor and that therefore this involves a distinction or discrimination in favour of the State. In would remark that there is a rational and intelligent basis for that also. The Code classifies offences in different ways for different purposes. Where the offences are considered relatively trivial they are treated as non-cognizable and the individual who feels aggrieved is left to prosecute the person who, he considers, has wronged him. It is only in special cases where the Magistrate issues a direction to that effect that the police will investigate a non-cognizable offence. A second line of classification that appears in the Code is that between non-compoundable offences, offences which are compoundable only with the leave of the Court, and offences which are compoundable without reference to any authority. Then again, there are categories of offences which the Court will not take cognizance of except on the complaint of the person directly aggrieved or of some specified authority or the sanction of such authority. Again, whatever the nature of the case, once it is committed to a Court of Session, the Code gives the State complete carriage of the proceedings by requiring that the case shall be conducted by a Public Prosecutor. It may be said, all this is true enough, but why should the State be given the sole right of appeal from an acquittal when such a right is denied to a private person ? Part of the answer to this lies in the consideration that a crime, unlike a civil wrong, not only involves an injury to the individual directly affected but also impairs the security of the State. Part of the answer to this lies in the consideration that a crime, unlike a civil wrong, not only involves an injury to the individual directly affected but also impairs the security of the State. It has been stated, and I think quite truly,"Every unpunished murder takes away something from the security of every man's life." (Daniel Webster.) In like manner every other unpunished offence, though necessarily in a lesser degree, takes away something from the security of the community. Of the duties which a State has to perform, two are paramount - protection of the community from external aggression and preservation of law and order inside the community. In order that the State may effectively discharge the second of these duties, it must have the power not only to apprehend wrong-doers but to see that they are punished according to the law of the land. There is nothing unreasonable in the legislature considering that the executive authority, in order to effectively discharge its duty in this respect should have the power to canvass in an ordinary Court of law, the correctness of an order of acquittal which, it is advised, is wrong or erroneous. But then, it may be asked, why should not this right also be given to a private complainant ? To this again, part of the answer would be that one may presume that the executive authority of the State would be moved only by considerations of public interest and the desire to uphold the law, while a private prosecutor may be moved by the desire for revenge, by the hope of collecting blackmail or by other indirect or improper motive. As regards the contention that the right to appeal which is given to the executive authority of the State necessarily gives it power to pick and choose between persons, one must remember that unlike an order which is issued to a particular individual in a particular context, a statute has to be general in its nature and terms since it has to take in and provide for different contingencies, situations and circumstances, and that it is impossible to frame a law which does not confer a measure of discretion on the human agencies who are called on to administer it. The power conferred by the Criminal Procedure Code and the other penal laws of the land on a police officer to effect arrests is an illustration in point. The law merely says that a police officer may arrest if he has reason to believe or to suspect that a certain state of things exists. In what appears to an outsider to be identical situations, a police officer may decide to arrest X and not Y. In like manner a health officer, who is empowered to destroy food offered for sale to the public, if in his opinion it is unsafe for human consumption, may decide to destroy the food offered by X and not that offered by Y. I have mentioned just two cases which come uppermost to my mind, but actually the instances in which the law calls upon its agents to exercise their discretion are legion. Every exercise of discretion involves to some extent picking and choosing; but that will not necessarily and by itself have the effect of making the law which confers a discretion, bad; it would depend on other factors also.The contention of Mr. Veeraswamy that Section 417, Criminal Procedure Code, is bad because it does not lay down any principles for the guidance of the State Government, overlooked the impracticability of enunciating a comprehensive rule in that regard. On this point certain observations that appear on pages 586 and 587 of Willis on Constitutional Law are of interest :- "Is it proper classification to put in one class those who get the consent of a board or of an official and into another class those who do not, where no standard is set up to control the action of the board or official ? Some case answer this question in the affirmative, while other cases answer it in the negative. Perhaps the best view on this subject is that due process and equality are not violated by the mere conference of unguided power, but only by its arbitrary exercise by those upon whom conferred ...................................... If a statute declares a definite policy, there is a sufficiently definite standard for the rule against the delegation of legislative power, and also for equality if the standard is reasonable. If no standard is set up to avoid the violation of equality, those exercising the power must act as though they were administering a valid standard ......................... If a statute declares a definite policy, there is a sufficiently definite standard for the rule against the delegation of legislative power, and also for equality if the standard is reasonable. If no standard is set up to avoid the violation of equality, those exercising the power must act as though they were administering a valid standard ......................... Unguided administrative discretion to grant or refuse a licence to carry on a lawful business is constitutional without such review where it is impracticable to lay down an all-comprehensive rule or where the personal fitness of an applicant is concerned or where a mere privilege is involved." * On the three decisions of the Supreme Court which were cited the observation may perhaps be made that the last two appear to involve a modification or amendment of the first. It was explained in one of the judgments delivered in Kedar Nath v. State of West Bengal:- "Accordingly, in their view, the decision of the majority in the Saurashtra case marked a retreat from the position taken up by the majority in the earlier case of Answer Ali Sarkar." * Moreover, between the enactments whose validity was impugned before the Supreme Court in the three cases already referred to, and Section 417, Criminal Procedure Code, there is one material difference. In those cases the State sought to set up special tribunals for the trial of particular offences or classes of offences or classes of cases. Here there is no question of any person being asked to take his trial before any court other than the ordinary courts of law. As I understand these decisions there is nothing in them to say that a law would be bad merely because it confers a measure of discretion on the agents whom it sets up or appoints to carry out its purposes. The objection taken in the cases before the Supreme Court was that while one individual would have the case against him tried in the ordinary Court, another in similar circumstances may find himself forced to take his bid before a Special Court. The objection taken in the cases before the Supreme Court was that while one individual would have the case against him tried in the ordinary Court, another in similar circumstances may find himself forced to take his bid before a Special Court. It seems to me that where in order to enable it to discharge what is clearly one of its primary duties powers are conferred on a Government it would not be a valid objection to the grant of those powers that the agents through whom those powers have to be exercised are required to exercise their discretion - so long as there is a reasonable connection between the duty and the power. Where that discretion is exercised arbitrarily or oppressively or capriciously the citizen has his remedy. But, if I were to uphold the objections raised by learned counsel for the respondents and to say that wherever any exercise or discretion is involved there is a denial of equality, a large part of the Code of Criminal Procedure must go by the board. The Code as it stands confers on a Magistrate in his capacity as an administrative officer power to decide whether he will direct the police to investigate a non-congizable case or not. The Station House Officer is given a discretion to decide whether he will charge sheet a particular case or not; the District Magistrate as an administrative officer is given power to tender pardon to an accomplice; the Public Prosecutor is given a discretion to withdraw from a prosecution. And similarly in a long series. All these and numerous other provisions will have to be jettisoned if these objections are valid. I have no doubt that the framers of the Constitution did not intend to bring about such violent change in our criminal judicial system.The argument of Mr. Pai that in the 19th century we had a foreign monarchical government while to-day we are a sovereign independent republic seems to be really beside the mark; the necessity to preserve law and order inside the country is no less-to-day than it was in the 19th century; perhaps it is even more. While dealing with the contention of Mr. Pai that in the 19th century we had a foreign monarchical government while to-day we are a sovereign independent republic seems to be really beside the mark; the necessity to preserve law and order inside the country is no less-to-day than it was in the 19th century; perhaps it is even more. While dealing with the contention of Mr. Pai that the State is favoured by its being given a right of appeal to this Court while the convicted person is not in fact always given such a right, I have already pointed out that a reasonable basis exists for treating prosecutors and accused persons differently. Incidentally, one may doubt whether if a convicted person were told that his right of appeal is only to this Court, it will not really amount to denying him a right of appeal, since the expenses involved in coming to this Court, would in a large number of cases, be so heavy as to make the right of appeal given to a convicted person illusory. On the contention of Mr. Veeraswamy that a law would be bad if it conferred discretionary powers on the executive authority of the State while it would not be bad if it conferred such discretion on the judicial organs of the State, the following passage appearing in pages 653 and 654 of Willis on Constitutional Law will be of interest :- "The limitation of due process of law now also applies to matters of substantive law as well as to matters of legal procedure and against the actions of all three branches of government - executive, legislative, and judicial - whether State government or federal government .................... Does due process of law, as a matter of substances, apply to the executive and judicial branches of the government ? The assumption has been that it applies only to the legislative branch of government, and until recently probably this was the doctrine found in the decisions. However, the protection of the equality clause has applied against all the different branches of the government. The assumption has been that it applies only to the legislative branch of government, and until recently probably this was the doctrine found in the decisions. However, the protection of the equality clause has applied against all the different branches of the government. Due process of law now includes the protection of equal laws and for this reason should apply to all branches of the government; but even if it did not include the protection of equal laws it should apply to all three branches of the government, and now this position has been taken by the cases, both as to the executive and as to the judiciary. In the case of the judiciary the due process clause might have been applied to a failure correctly to apply constitutions, statutes, and decisions, or to a failure to conform to the general principles of law in all the States, or a failure to be reasonable." * A final and complete answer to the objection that Section 417, Criminal Procedure Code, contravenes Article 14 of the Constitution is to be found in Article 134(1)(a) which reads thus :- "An appeal shall lie to the Supreme Court from any judgment, final order or sentence in criminal proceeding of a High Court in the territory of India if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death." * This Article, it will be seen, takes note of the existing right of the State to appeal from orders of acquittal and proceeds on the assumption that the right is a valid one. Mr. Pai stated that this provision in Article 134(1)(a) does not invalidate his contention that Section 417, Criminal Procedure Code, is bad to the extent that it confers on the State larger powers of appeal that on an accused person, because, as he explained, in the case of a trial for murder both the accused and the State get only one appeal each and the appeal in both cases lies to the High Court, and, it is only to this extent that a right of appeal against an acquittal is recognised by Article 134(1) (a). Two observations may be made on this. Two observations may be made on this. The first is that one may well doubt whether the authors of the Constitution intended or even thought that they were cutting up Section 417, Criminal Procedure Code, in the manner that Mr. Pai's argument suggests. Besides, as I explained more than once earlier, there are valid reasons for treating the prosecutor, whether that prosecutor is a private person or State, differently from the accused. I may now refer to three decisions cited by the learned Public Prosecutor. The first of these is reported in Shiv Bahadur Singh v. State of V.P. That is a case in which the Government of Vindhya Pradesh by an Ordinance constituted a special Court which was to have the same status as a Sessions Court for the trial of certain offences. The Judge in the special Court acquitted the two accused in a case before him. The State filed an appeal to the Judicial Commissioner who convicted both the accused. The convicted persons then appealed to the Supreme Court and the point was taken that no appeal lay to the Judicial Commissioner from the order of acquittal made by a special Judge. That contention was repelled. The Supreme Court observed (at page 397) :- "Once the special Court is to be deemed a Court of Sessions the normal right of appeal provided by Section 410 or Section 417, as the case may be, must be taken to have been expressly provided by reference and not as arising by mere implication." * This case, therefore, stands out as an instance in which the validity of the right of appeal conferred on the State against an order of acquittal was affirmed. The second case is reported in S.I. Bank v. Pichuthayappan 1953 AIR(Mad) 326). It arose out of an application for the issue of a writ to quash the order of the Additional Commissioner for Workmen's Compensation, Madras. The petitioner before this Court was the South India Bank Ltd., and the respondent was a clerk whose services had been terminated by the bank. The clerk preferred an appeal under Section 41(2), Madras Shops and Establishments Act, 1947 (XXXVI of 1947), to the Labour Commissioner, Madras, questioning the validity of the termination of his services. The Additional Commissioner, after enquiry, held that the discharge was not for a reasonable cause and set aside the order of the bank. The clerk preferred an appeal under Section 41(2), Madras Shops and Establishments Act, 1947 (XXXVI of 1947), to the Labour Commissioner, Madras, questioning the validity of the termination of his services. The Additional Commissioner, after enquiry, held that the discharge was not for a reasonable cause and set aside the order of the bank. The bank then applied for a writ to quash the order of the Commissioner. for the bank urged that Section 41 of Madras Act XXXVI of 1947 was ultra vires the legislature because it discriminated between employees on the one hand and employers on the other and as among employers themselves between employers to whom the Act applies and those to whom it does not. His contentions were negatived on the ground that the discrimination proceeded on a reasonable classification. The next case cited by the learned Public Prosecutor to which I need refer is reported in Palko v. Connecticut (U.S. 82 L.E. (288)). That was a case in which the State of Connecticut had passed a law in these terms :- "Section 6494. Appeals by the State in criminal cases. - Appeals from the rulings and decisions of the superior court or of any criminal court of common pleas, upon all questions of law arising on the trial of criminal cases, may be taken by the State, with the permission of the presiding Judge to the Supreme Court of Errors, in the same manner and to the same effect as if made by the accused." * The accused in that case had been convicted of murder in the second degree by the trial court. On appeal by the State he was convicted of murder in the first degree. The right of the State to appeal was challenged and the Court ruled that "a State statute permitting appeals in criminal cases to be taken by the State is not an infringement of the due process provisions of the Fourteenth Amendment." This decision, I may remark, would, in its application to our Constitution, only amount to saying that the right of appeal against an acquittal does not contravene Article 20(2). It does not really touch the question whether Section 417, Criminal Procedure Code, really discriminates in favour of the State and is for that reason bad. The other cases cited by the Public Prosecutor do not call for particular notice. Mr. It does not really touch the question whether Section 417, Criminal Procedure Code, really discriminates in favour of the State and is for that reason bad. The other cases cited by the Public Prosecutor do not call for particular notice. Mr. Pai next advanced an argument based on the language of the Madras General Sales Tax Act, 1939. Section 2(b) of the Act runs as follows :- "'dealer' means any person who carries on the business of buying or selling goods." To this there were two explanations, the first of which is not relevant here. The second explanation was in these terms :- "The agent of a person resident outside the Province who carries on the business of buying or selling goods in the Province shall be deemed to be the dealer in respect of such business for the purposes of this Act." * This explanation was removed by Madras Act XXV of 1947 which came into force on 1st January, 1948. At the time the transactions, which formed the subject matter of the various prosecutions now under consideration were entered into, this explanation existed and the effect of that explanation, contended Mr. Pai, is to fasten the liability to pay sales tax in respect of the transactions of a non-resident upon his resident agent and to exonerate the non-resident. I do not agree. In the first place the amending Act of 1947 did not really alter the definition of the word "dealer" occurring in the principal Act; it merely removed the explanation from Section 2(b) and carried it into Section 14A, where it was incorporated as a sub-section. In the second place the circumstance that the agent of a non-resident is made liable and is treated as a "dealer" for purposes of the Act, does not have the effect of exonerating the non-resident where he has no agent at all. How the Act treats the matter is this : where the dealer is a resident he is himself held liable; where the dealer is a non-resident, but he has a resident agent there, that agent is held liable. The Act, it will be noticed, does not say that where a person is non-resident and has no local agent he is exempt from liability under the Act. Faced with this difficulty Mr. The Act, it will be noticed, does not say that where a person is non-resident and has no local agent he is exempt from liability under the Act. Faced with this difficulty Mr. Pai observed that the power taken to tax a non-resident contravenes Section 99 of the Government of India Act, 1935, which was in force at the time these transactions were entered into. Section 99, said Mr. Pai, precludes a State legislature from enacting laws having operation beyond the territories of the State which passed the law. Now, granting that, it does not follow that the Madras General Sales Tax Act was bad in every case in which it imposed a burden on non-resident. If an alien had come into the territory of this State and committed an offence here he could certainly have been punished according to the law in force at the time. In like manner, to the extent that the Madras General Sales Tax Act imposed a liability on non-residents in respect of transactions they put through inside this State, the Provincial Legislature had and has jurisdiction to make them liable.Mr. Pai next contrasted the language of the Madras General Sales Tax Act with the language of Sections 3, 4 and 42 of the Income-tax Act and contended that there was no intention in the Madras General Sales tax Act to make non-residents liable. I am unable to agree. The Income-tax Act uses a particular set of words; the Madras General Sales Tax Act uses a different set of words; but, the intention to make a non-resident liable very clearly emerges from the words actually noted in the Madras General Sales Tax Act. It will be appreciated that if the intention was to exempt non-residents, the second explanation to Section 2(b) would have been wholly unnecessary. Mr. Pai finally argued that a "dealer" is defined as a person who carries on the business of buying or selling goods and that a person cannot be said to be doing business unless he is present in the place where the business is done or transacted. In other words, according to him, before a person can be made liable under the Madras General Sales Tax Act in respect of transactions effected in the State, he must be inside the State at the time the transactions are put through. In other words, according to him, before a person can be made liable under the Madras General Sales Tax Act in respect of transactions effected in the State, he must be inside the State at the time the transactions are put through. For such a reading of the Act, I can see no justification whatsoever. By using the post, the telegraph, the telephone and other means of communication, a person can stay for instance in Madras and effect purchases or sales in any part of the world; he can even more easily carry on the business of buying or selling goods in any part of India without quitting his chair in his office in Madras. And, conversely a person can be physically outside the State of Madras all the time and still carry on the business of buying or selling goods inside the State of Madras. I do not read the Act as intending to exempt persons of this kind from liability in respect of transactions they put through inside the State. Authority for this view is to be found in Vakkan v. Government of Madras 1952 (2) MLJ 353 ; the head-note to which reads as follows :- "A person who is not a resident of a State cannot escape from or evade the imposition of taxes by the particular State if the necessary requirements are fulfilled which justify the levy of a tax." * All the general contentions raised on behalf of the respondents fail. I shall next examine the various cases on their individual merits. CRIMINAL APPEAL NO. 532 OF 1952. This appeal stands by itself and it may first be disposed of. Briefly the case for the prosecution was that at about 2-30 A.M. on 17th April, 1951, P.W. 5, the Sub-Inspector of Police, Gudalur, searched the house of the accused in the presence of P.W. 3, the Village Munsif, and P.W. 4, the Talayari, and recovered two bags, one containing 85 counterfeit one-rupee coins and the other containing various articles which could be used to make counterfeit coins. In addition, lumps of lead were also seized. The learned Assistant Sessions Judge thought that it would not be safe to act on this evidence. In addition, lumps of lead were also seized. The learned Assistant Sessions Judge thought that it would not be safe to act on this evidence. He observed :- "Unfortunately in this case, the story of recovery is narrated by the Village Munsif, the Talayari and the Sub-Inspector who are all officials and there is no testimony of any independent or respectable persons of the locality. Moreover, no reason is given as to why the Talayari of Mela Gudalur was not sent for but only the Talayari of Keela Gudalur was sent for. Unfortunately P.W. 4 and the accused are not on very good terms." * Now, it may be that on the evidence a different view can be perfectly taken. But it seems to me the right question to ask is not whether if I had tried the case I would have convicted the accused, but whether the conclusion reached by the Assistant Sessions Judge is so clearly wrong that the acquittal must be set aside. I am not prepared to say that. The police station is only about a furlong away from the house of the accused. A constable resides a couple of doors away. Other people, though no doubt they are relations of the accused, live in the same house from which the articles are said to have been seized. The accused is a Goundar; and, unlike a man belonging to the goldsmith caste it cannot be presumed about the accused that in the course of his upbringing he would have acquired any skill in the working of metals. Finally, it is difficult to understand why P.W. 5, the Sub-Inspector, did not take a more respectable person than a Talayari to be present at the search. A Talayari is, all said and done, only an inferior constable. It is not as though the position was such that no other witness was available. The evidence shows that the house of the accused is in a street and with a little trouble the Sub-Inspector could have obtained more respectable panchayatdars than P.W. 4Looking at all the circumstances of the case, I am not prepared to say that the decision of the learned Assistant Sessions Judge is manifestly wrong. This appeal is therefore dismissed. CRIMINAL APPEAL NO. 387 OF 1952. Mr. Pai argued that the prosecution has not proved in this case that the goods were sold in Fort Cochin. This appeal is therefore dismissed. CRIMINAL APPEAL NO. 387 OF 1952. Mr. Pai argued that the prosecution has not proved in this case that the goods were sold in Fort Cochin. That contention cannot be accepted in view of the plain evidence of P.W. 1 which was to the effect, "During 1945-46 my firm purchased coir yarn from the accused for Rs. 51, 318-10-9 .................... The goods relating to these transactions were delivered by the accused at Fort Cochin. They were purchased by us on bale-weighed basis. After the goods are landed they will be processed, weighed and then baled ................ The accused has nothing to do with the goods after landing." * Mr. Pai argued that the goods might have been sold by the accused outside Fort Cochin and that all he did was subsequently to effect delivery at Cochin. But no suggestion to that effect was made to any of the witnesses in cross-examination. On a fair reading of the evidence of P.W. 1 the only conclusion possible is that the goods were sold by the accused to H.E. Day Ltd., in Fort Cochin. I therefore allow the appeal and convict the accused and sentence him to pay a fine of Rs. 100. He is also directed to pay Rs. 513-3-0 which is the sales tax payable by him. CRIMINAL APPEAL NO. 388 OF 1952. The evidence of P.W. 1 shows that during the year 1946-47 his employers Messrs. Volkart Brothers, Fort Cochin, purchased from the accused coir yarn of the value of Rs. 1, 27, 610-8-0. Now, though all these goods were delivered at Fort Cochin they included purchases which had been actually made by Messrs. Volkart Brothers in Alleppey and subsequently despatched to Cochin. In respect of the sales effected in Alleppey the State of Madras cannot naturally claim sales tax.Mr. Pai, counsel for the accused, filed a statement, which on behalf of the learned Public Prosecutor was stated to be correct, showing (after excluding the transactions in Alleppey) the sales tax payable in respect of the transactions effected in Cochin. The figure is Rs. 2, 537. I allow the appeal and impose a fine of Rs. 300 on the accused. I also direct him to pay the sales tax amount of Rs. 2, 537 to the Government. CRIMINAL APPEAL NO. 389 OF 1952. Here it appears from the figures furnished by Mr. The figure is Rs. 2, 537. I allow the appeal and impose a fine of Rs. 300 on the accused. I also direct him to pay the sales tax amount of Rs. 2, 537 to the Government. CRIMINAL APPEAL NO. 389 OF 1952. Here it appears from the figures furnished by Mr. Pai and accepted as correct on behalf of the Public Prosecutor, that though the accused was assessed to a tax of Rs. 2, 166 the bulk of the transactions were with the firm of Aspinwall & Co., (Travancore) Ltd., at Alleppey, and that the tax payable in respect of the transactions entered into in Fort Cochin was only Rs. 40. While therefore allowing the appeal I do not think it necessary to impose as heavy a sentence as the Sub-Divisional Magistrate did. The accused in this case is sentenced to pay a fine of Rs. 40. In addition he is directed to pay the sum of Rs. 40 which is due as tax to the Government. CRIMINAL APPEAL NO. 390 OF 1952. So far as this appeal is concerned the evidence of P.W. 1 makes it perfectly clear that all the sales which the accused effected were to Aspinwal (Travancore) Ltd., in Alleppey. He deposed : "I am representing Messrs. Aspinwal & Co., Ltd., Fort Cochin. During 1946-47 Messrs. Aspinwal & Co. (Travancore) Ltd., Alleppey, had purchased coir yarn for Rs. 49, 440. My company was and is the receiving and handling agents for Messrs. Aspinwal & Co. (Travancore) Ltd., Alleppey. The above goods were delivered in our premises at Fort Cochin ............... We are not the buying agents for Messrs. Aspinwal & Co. (Travancore) Ltd., Alleppey. We receive and process the goods. The contracts were in the name of Messrs. Aspinwal & Co. (Travancore) Ltd., Alleppey ............... We are acting as their financiers."He did not say that Aspinwal & Co. of Cochin made any purchases from the accused. In view of these admissions it is clear that the accused did not sell any goods in Fort Cochin. The appeal so far as he is concerned is dismissed. CRIMINAL APPEAL NO. 391 OF 1952. Here also to the sales effected in Fort Cochin other sales effected by the accused outside Fort Cochin have been added. The statement furnished by Mr. Vasantha Pai shows that the amount payable as tax by the accused is not Rs. The appeal so far as he is concerned is dismissed. CRIMINAL APPEAL NO. 391 OF 1952. Here also to the sales effected in Fort Cochin other sales effected by the accused outside Fort Cochin have been added. The statement furnished by Mr. Vasantha Pai shows that the amount payable as tax by the accused is not Rs. 5, 332 as was claimed before the Sub-Divisional Magistrate, but only Rs. 5, 144. I allow the appeal and set aside the order of acquittal and sentence the accused to pay a fine of Rs. 450. In addition, he will pay the sum of Rs. 5, 144 as sales tax. CRIMINAL APPEAL NO. 392 OF 1952. Here again the sales effected by the accused to forms inside Fort Cochin have been clubbed with sales effected by the accused outside Fort Cochin. Before the Sub-Divisional Magistrate a sum of Rs. 2, 125 was claimed as tax. From the statement filed by Mr. Pai and accepted as correct on behalf of the Public Prosecutor, it appears that Rs. 1, 341 relates to transactions outside Fort Cochin and that the tax payable on transactions inside Fort Cochin is only Rs. 784. I convict the accused and sentence him to pay a fine of Rs. 100. I also direct him to pay the tax of Rs. 784 due to the Government. CRIMINAL REVISION CASE NO. 778 OF 1952 AND CRIMINAL REVISION CASE NO. 655 OF 1952. The accused in these two cases was a firm called M. R. Ayppu & Co., Ltd. It has an office in Mattancherri, outside Fort Cochin. During the year 1947-48 the firm sold various quantities of goods to Messrs. Volkart Brothers and Pierce Leslie & Co., Ltd., both situate in Fort Cochin. In respect of these sales the firm was assessed to sales tax amounting to Rs. 3, 850-15-8. The accused refused to pay the fine and so was prosecuted and convicted by the Sub-Divisional Magistrate, Fort Cochin. On appeal the Sessions Judge held that the accused was a non-resident in the State and that therefore it could not be assessed to sales tax even in respect of the transactions entered into inside the State. 3, 850-15-8. The accused refused to pay the fine and so was prosecuted and convicted by the Sub-Divisional Magistrate, Fort Cochin. On appeal the Sessions Judge held that the accused was a non-resident in the State and that therefore it could not be assessed to sales tax even in respect of the transactions entered into inside the State. But the Sales Tax Act was amended by the Madras Act XXV of 1947 by the insertion of Section 16(A) which is to the effect, "The validity of the assessment of any tax, or of the levy of any fee or other amount, made under this Act, or the liability of any person to pay any tax, fee or other amount so assessed or levied shall not be questioned in any Criminal Court in any prosecution or other proceeding, whether under this Act or otherwise." * This amendment came into force on 1st January, 1948. In view of that the learned Sessions Judge confirmed the conviction in respect of the sales tax attributable to the period subsequent to 1st January, 1948, but acquitted the accused in respect of the tax prior to that date. As against the acquittal the State has preferred Criminal Revision Case No. 778 of 1952, and, as against the conviction, the accused has preferred Criminal Revision Case No. 655 of 1952. In my judgment in Criminal Appeal Nos. 387 etc. of 1952 I have given reasons for taking the view that the circumstance that a person is not a resident within the State does not by itself exempt him from paying the sales tax in respect of transactions put through inside the State. I need not repeat them here. For the reasons given there I allow Crl. R.C. No. 778 of 1952 and convict the accused in respect of the transactions prior to 1st January, 1948, and sentence him to pay a fine of Rs. 200. The accused will also pay the sales tax amount of Rs. 1, 867-10-6. In Crl. R.C. No. 655 of 1952, Mr. Pai argues that Section 16(A), on the basis of which the learned Sessions Judge confirmed the conviction relating to transactions subsequent to 1st January, 1948, is ultra vires since according to him it contravenes Article 20(1) of the Constitution. The matter, however, seems to be concluded against Mr. Pai by the decision in Syed Mohamed & Co. v. State of Madras. The matter, however, seems to be concluded against Mr. Pai by the decision in Syed Mohamed & Co. v. State of Madras. I therefore dismiss Crl. R.C. No. 655 of 1952.Note : Mr. Pai prays for leave to appeal to the Supreme Court. He was asked to file a separate application and give notice to Public Prosecutor.