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Tuesday, April 12, 2016

Indian Evidence Act 1872-S. 35-Relevance of entry in school record for proof of age-Should the record be kept by public officer ? In the instant case there are two documents of two different schools showing the date of birth of the appellant as June 22, 1957 and both these documents have been signed by his father and were in existence ante litem motam. Hence, there could be no ground to doubt the genuineness of these documents. At the time when the age of the appellant was first mentioned in the admission form, there was absolutely no dispute about the date of birth and there could Dot have been any motive on the part of the parents to give a false date of birth because it was his first admission to a school at a very early age. The school to which the appellant was admitted enjoyed good reputation of authenticity.

PETITIONER:
UMESH CHANDRA

Vs.

RESPONDENT:
STATE OF RAJASTHAN

DATE OF JUDGMENT02/04/1982

BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
DESAI, D.A.
VARADARAJAN, A. (J)

CITATION:
 1982 AIR 1057  1982 SCR  (3) 583
 1982 SCC  (2) 202  1982 SCALE  (1)335
 CITATOR INFO :
 RF    1987 SC1501 (2,9)
 RF    1991 SC1494 (7)


ACT:
     Rajasthan Children   Act,,  1970-Material  date for
determining age of delinquent-Is  it date  of commission of
offence or date of trial ?
     Indian Evidence  Act 1872-S.  35-Relevance of  entry in
school record  for proof of age-Should the record be kept by
public officer ?



HEADNOTE:
     The Rajasthan  Children Act,  1970, provides  that any
person below  the age of 16 years should be presumed to be a
child and  that a  delinquent child  should be tried  by  a
Children's court  in accordance with the procedure laid down
therein.
     The appellant  was charged  under ss.  364  and 302,
I.P.C., in  connection with an occurrence that took place in
Tonk district  on March 12, 1973.  A preliminary  objection
that the Sessions Judge was not competent to try the case of
The appellant  as he was a child under the provisions of the
Children Act was overruled by the trial court.
     The  revision   filed  by the  appellant against the
decision of  the trial court was dismissed by the High Court
which held  that the  Children Act was not applicable to the
appellant as that Act had not been enforced in Tonk district
on the date of the occurrence. The High Court further held
that the appellant had failed to prove that he was below the
age of 16 years.
     On being directed by this Court to ascertain the actual
date of birth, the High Court held that the date of birth of
the appellant was September 22, 1956; and, therefore, he was
over 16 years on the date of the occurrence. The High Court
rejected the  documents produced  from the first two schools
attended by  the appellant which showed his date of birth to
be June 22, 1957,  for the  reason that those documents had
not been  kept or  made by a public officer; it relied on an
affidavit furnished  by the  father of tho appellant  while
admitting him to the third school in which the date of birth
had been  changed to  September 22, 1956. The explanation of
the appellant's father that  the date of  birth  had been
changed to fulfil the requirement of age under the Rajasthan
Board of  Secondary Regulations to enable  the appellant to
appear in   the  Higher   Secondary  Examination   at the
appropriate time was not accepted.
     Allowing the appeal,
584
^
     HELD: 1. (a) The relevant date for applicability of the
Rajasthan Children  Act, 1970  so far  as  the age  of the
accused, who claims to be a child, is concerned, is the date
of the occurrence and not the date of the trial as is clear
from the provisions of ss. 3 and 26 of the Act. [594 C]
     (b) At  the time  of the  occurrence, the appellant was
undoubtedly a  child within  the provisions of the Act. [592
H]
     (c) The  question whether the appellant could be tried
as a  child if he had become more than 16 years by the time
the case  went up  to the court, does not survive as the Act
has now been enforced in  the entire State. A  combined
reading of ss. 3 and 26 clearly shows that the statute takes
care of contingencies where  proceedings in  respect  of  a
child were pending in any court on the date on which the Act
came into  force. Section  26 in  terms lays  down that the
court should  proceed with  the case  but after having found
that the child has committed the offence it is debarred from
passing any  sentence but is obliged to forward the child to
the Children's court for  passing orders in accordance with
the Act. [592 H; 593 A; 593 F-G]
     (d) The  judgment of  the Sessions Judge as affirmed by
the High  Court be  set aside  and the Additional  Sessions
Judge, Jaipur, be directed to try the accused and if he gave
a finding  that the accused was guilty, he shall forward the
accused to  the Children's  court for  receiving sentence in
accordance with the provisions of the Act. [594 E]
     2. There  is no  legal requirement under s.  35 of the
Evidence Act  that the public or other official book should
be kept only by  a public officer; all that is necessary is
that the document should be maintained regularly by a person
whose duty it is to maintain the document. [588 G; 589 C]
     Mohd. Ikram  Hussain v.  State of U.P., [1964] 5 S.C.R.
86, 100 & Abdul  Majid v.  Bhargavam, A.I.R.  1963 Ker.  18
referred to.
     The Rajasthan  Children Act  being a  piece  of  social
legislation is meant for  the protection  of infants who
commit criminal offences  and, therefore,  its  provisions
should be  liberally and  meaningfully construed  so  as  to
advance the  object of the Act. The Children Act was enacted
to protect  young children  from the  consequences of  their
criminal acts  on the  footing that  their mind at that age
could not  be said  to be mature for imputing mens rea as in
the case of an adult. [524 D; 593 H; 594 A]
     In the  instant case  there are  two documents  of two
different schools showing the date of birth of the appellant
as June 22, 1957  and both these documents have been signed
by his father and were in existence ante litem motam. Hence,
there could  be no  ground to doubt the genuineness of these
documents. At  the time when the  age of  the appellant was
first mentioned in the admission form, there was absolutely
no dispute  about the date of birth and there could Dot have
been any  motive on  the part of the parents to give a false
date of birth because it was his first admission to a school
at a  very early  age. The school to which the appellant was
admitted enjoyed good reputation of authenticity.
585
there had  been any  element  of  suspicion,  the  admission
register  and the  scholar's register  would  have been
corrected by  the headmistress of the school. [591 D; 590 D;
590 H]
     M/s. Gannon  Dunkerlay &  Co. Ltd. v.  Their  Workmen,
[1972] 3 S.C.C. 443 referred to.
     3. The appellant's father has given a cogent reason for
changing the  date of  birth and  there is no reason for not
accepting his  explanation particularly because the offence
was committed  seven years after changing the date of birth.
[592 C]



JUDGMENT:
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
439 of 1976.
     Appeal by special leave  from the judgment and  order
dated the  23rd April, 1976 of the Rajasthan High Court in
Criminal Revision No. 300 of 1974.
     K.K. Venugopal,  S.S. Khanduja, and G.C. Mishra for the
Appellant.
     B.D. Sharma for the Respondent.
     The Judgment of the Court was delivered by
     FAZAL ALI, J. This appeal by special leave is directed
against a judgment dated June 29, 1974 of the Rajasthan High
Court  overruling  a  preliminary  objection  taken  by the
accused before the Sessions  Judge to the effect  that the
Sessions Judge, Tonk was  not competent  to try the case as
the accused Umesh Chandra was a child as contemplated by the
provisions of  the Rajasthan Children Act, 1970 (hereinafter
referred to  as the  'Act')  on the  date  of the  alleged
occurrence. This  Act appears  to have been passed  by the
Rajasthan Legislature, but after  receiving assent  of the
President was  enforced in  various districts  from time  to
time. Under  the provisions  of the Act any person below the
age of 16 (sixteen) would be presumed to be a child and the
trial  of   a  delinquent  child  was  to  be  conducted  in
accordance  with   the procedure  laid down  therein. The
objection taken by the appellant was that as he was below
the age of 16 at the time of the occurrence on 12.3.1973, he
could not be tried by the Additional Sessions Judge, Tonk or
the Additional Sessions Judge, Jaipur city, to whom the case
was transferred or 17.10.73
586
     The Sessions Judge overruled the objection taken by the
accused and  therefore he  filed a revision to the Rajasthan
High  Court   against  the   order.  The  High Court  after
considering the oral and  documentary evidence came to the
conclusion that the Act was not applicable to the appellant
for two reasons-(1) that  it was  not brought into force in
Tonk at the time  of the  offence, and (2) that it was not
proved by  the accused that he was below  the age of 16 on
12.3.1973, the date of the  occurrence.  The accused was
charged for  offences punishable  under sections 364 and 302
of the Indian Penal Code. Aggrieved by the order of the High
Court, the  appellant moved  this Court in special leave and
at the time of granting special leave, this Court directed
the High  Court to  return a  finding of  fact on the actual
date of birth of  the accused  so  that  this  Court may
determine the  applicability of the Act to the facts of the
present case.
     The High  Court after reappraising the entire evidence-
oral and  documentary-by its  Order dated 18.11.76 came to a
clear finding that the age of Umesh Chandra at the time when
the offence  was committed was 16 years 5 months and 20 days
and that the exact date of birth of the appellant was proved
to be  22.9.1956. After the finding of fact called for from
the High Court was sent to this Court, the appeal was placed
for hearing before us.
     In support of the appeal, the learned counsel for the
appellant has  assailed the  finding of the High Court-that
the age of the appellant was above 16  years-and  it was
contended that the High  Court has  based its decision  on
wholly irrelevant  material and has also committed errors of
law in appreciating important documentary evidence.
     Another point  that was  argued before us was as to the
application of the Act to  Tonk,  where  the offence was
committed. As, however, the Act has now been enforced in the
entire State, this question no longer survives because where
a situation  contemplated by  s. 26  of the  Act arises,  an
accused, who  is found to be a child, has to be forwarded by
the Sessions  Court to the Children's court which can pass
appropriate sentence.  Where however  proceedings against  a
child are  pending before  Sessions Judge,  s. 26 of the Act
enjoins a  duty on  the Court  in which the  proceeding  in
respect of the child is pending on the date on which the Act
is extended  to the  area  to  act  in the  manner  therein
prescribed. In this eventuality,  the Court  is  under  an
obligation to proceed With the trial and record
587
a finding as if the Act does not apply. But after concluding
the trial  and recording  a  finding  that  the  child had
committed an offence, the Court cannot pass any sentence but
the Court  is under  a statutory  obligation to forward the
child to  the Children's  court which  shall pass  orders in
respect of  that child in accordance with the provisions of
the Act,  as if it has been satisfied on inquiry under the
Act that  the child  bas committed  the offence.  In view of
this provision, s. 21 would be attracted and the Children's
court will have to deal with the child under s. 21.
     Thus, the main point for consideration in this case is
as to  what is the exact  date of  birth of  the appellant,
Umesh Chandra. The High Court appears to have brushed aside
the documentary evidence produced by the appellant mainly on
the ground that subsequent documents clearly proved that the
father of  the accused had not correctly mentioned the date
of birth  in the  previous schools attended by him (accused)
and later  corrected his date of birth by an affidavit which
was accepted  by the  High Court to be the correct date. The
High Court  also rejected  the oral  evidence adduced by the
appellant as also the horoscope produced by his father.
     We agree  with the High Court that in cases like these,
ordinarily  the oral  evidence can  hardly  be  useful  to
determine the  correct age  of a  person, and  the question,
therefore, would  largely depend  on the  documents and the
nature of their authenticity. Oral evidence may have utility
if  no documentary  evidence is  forthcoming.  Even the
horoscope cannot  be reliable  because it can be prepared at
any time  to suit  the needs  of a  particular situation. To
this extent,  we agree with the  approach made by the High
Court.
     Coming now to the facts on  the basis  of  which the
appellant sought  protection to be tried only under the Act;
according to the testimony of the father of the appellant he
was. born  on 22.6.57  and was aged 15 years 9  months  on
12.3.1973-the date of the occurrence.
     It is,  however, not disputed that at the time when the
appellant was born, his father was posted in a small village
(Dausa) where  the maternal grandfather of the appellant had
lived and perhaps he was not meticulous enough to report the
birth of his children. There is nothing to show the birth of
the appellant  nor any evidence has  been produced  on this
aspect of the matter. There is also nothing to show that the
dates of birth of the other children of
588
Gopal (the father) were registered in any Municipal register
or in  chowkidar's register.  We have  mentioned  this fact
because the High Court seems to have laid special stress and
great emphasis on the non-production of any reliable record
to prove  that the  birth of  the appellant had been entered
therein. It  is common knowledge that in villages people are
not very  vigilant in reporting either births or deaths and,
therefore, an  omission of this type cannot be taken to be a
most damaging  circumstance to demolish  the  case  of the
appellant regarding his actual date of birth.
     The first document wherein the age of the appellant was
clearly entered is Ext.  D-1 which  is the  admission form
under which  he was  admitted to  class III in St. Teressa's
Primary School, Ajmer. In  the admission  form, the date of
birth of  the appellant has been  show a  as 22.6.1957. The
form is signed by  Sister Stella  who was the Headmistress.
The form  also contains the seal of the school, DW, Ratilal
Mehta, who  proved the admission form, has clearly  stated
that the  form was  maintained in  the ordinary  course  of
business and was signed only by the parents. The evidence of
Ratilal Mehta  (DW 1)  is corroborated by the evidence  of
Sister Stella  (DW 3) herself who has also endorsed the fact
of the date of birth having been mentioned in the admission
form and has also clearly stated on oath that the forms were
maintained in  regular course  and that they were signed by
her. She has also stated that at the time when the appellant
was first  admitted she was the headmistress of St. Teressa
Primary School, Ajmer. The High Court seems to have rejected
this  document by  adopting  a very  peculiar process  of
reasoning which apart from  being  unintelligible  is also
legally erroneous.  The High  Court seems  to think that the
admission forms as also  the School's register (Ext. D-3)
both of which were, according to the evidence, maintained in
due course  of business,  were not  admissible in  evidence
because they  were not kept or made by any public officer.
Under s.  35 of the Evidence  Act, all that is necessary is
that the document should be maintained regularly by a person
whose duty  it is  to maintain the document and there is no
legal requirement  that the document should be maintained by
a public officer only. The High Court seems to have confused
the provisions of sections 35, 73 and 74 of the Evidence Act
in interpreting the documents which were admissible not as
public documents  or documents maintained by public servants
under sections 34, 73
589
or 74  but which were admissible under s. 35 of the Evidence
Act which may be extracted as follows:
 "35. Relevancy  of entry  in public record made in
     performance of duty
 An entry  in any  public or  other official  book,
     register or record, stating a fact in issue or relevant
     fact, and made by a public servant in the discharge of
     his  official   duty,  or by  any   other  person  in
     performance of  a duty specially enjoined by the law of
     the country  in which such books, register or record is
     kept, is itself a relevant fact."
     (Emphasis ours)
     A perusal of the provisions of  s. 35  would  clearly
reveal that there is no legal requirement that the public or
other official book should be kept only by a public officer
but all that is required is that it should be regularly kept
in discharge  of her  official duty.  This  fact  has been
clearly proved by two independent witnesses, viz., DW  1,
Ratilal Mehta and DW 3, Sister Stella. The question does not
present any  difficulty or  complexity as in our opinion the
section which  would assist  in this  behalf is s. 35 of the
Evidence Act  which provides  for relevancy  of entry in the
public record. In this connection we may refer to a decision
of this Court in Mohd. Ikram Hussain v. State of U.P., where
Hidayatullah, J. speaking for the Court, observed as under:
 "In the present case Kaniz Fatima was stated to be
     under the age of 18. There  were two certified copies
     from school  register which show that on June 20, 1960,
     she was  under 17 years of  age. There  was  also the
     affidavit of the father (here evidence on oath) stating
     the date of her birth and the statement of Kaniz Fatima
     to the  police  with  regard  to  her  own age.  These
     amounted to  evidence under the Indian Evidence Act and
     the entries  in the  school registers  were  made ante
     litem motam."
     This topic has been elaborately dealt with particularly
in  regard  to the  entries  in  School  Register  and the
admission forms in the case of-Abdul Majid v. Bhargavam. In
these circumstances,
590
the view  of the  High Court with regard to s. 35 is plainly
untenable and ss. 73 and 74 are utterly irrelevant.
     Further, the  High Court  was of  the view that as the
documents produced  by the  Teressa Primary School were kept
in loose  sheets, no  reliance can  be placed  on them. This
fact is admitted but the headmistress has explained that the
admission forms were bound much after the date of birth was
recorded and  hence it cannot be presumed that the documents
were not kept in the regular course of business.
     Moreover, the   School  where   the   documents were
maintained was an English  public  school  and the  record
maintained by it was undoubtedly unimpeachable and authentic
and could  not be suspected or presumed to be tampered with.
At the time  when  the age  of  the  appellant  was  first
mentioned in  the admission  form, there  was absolutely  no
dispute about the date of birth or for that matter the exact
date on which he was born and there could not have been any
motive on  the part  of the parents of the accused to give a
false date  of birth because it was his first admission to a
school at a very early age. Further, the school to which the
appellant was  admitted being  a Public School enjoyed good
reputation of authenticity.
     In M/s.  Gannon Dunkerlay & Co.  Ltd. v. Their Workmen
this Court made the following observations:
 "In fact, if the register had been prepared at one
     sitting for  purposes of these cases, the Company would
     have taken care that  no suspicious circumstance comes
     into existence  and,  if, by  chance,  any  error was
     committed, it  could have' prepared another register in
     lieu of Ext. C-1. The fact that this was not done shows
     that this register is  the register kept in the course
     of business and, hence, there is no reason to doubt the
     entries made in it."
     These observations fully apply  to the  facts  of the
present case  because if  there had  been  any element  of
suspicion  in  giving  the  date  of  birth,  the  admission
register  and the  Scholar's register  would  have been
corrected by the headmistress of the school.
591
     Exts. D-1 and D-2, mentioned above, are corroborated by
subsequent documentary evidence. It appears that an 1.7.65,
the boy was admitted  to 3rd  standard (equivalent  to 5th
class) in  St. Paul's  school, Jaipur  after the appellant's
father was  transferred from  Ajmer to Jaipur. Here also the
document shows that the  date of  birth given was the same,
namely, 22.6.1957.
     Thus, consistently on two occasions, starting from 1963
and ending  in 1965,  the date of birth was mentioned in the
relevant documents  as 22.6.1957.  This Court in Mohd. Ikram
Hussain v. State of U.P. & Ors. (Supra) has held that copies
of school  certificates or  the  affidavit  of the  father
constitute good proof of  age, vide  observations extracted
herein-before.
     In the instant case also there are two documents of two
different schools  showing the age of the accused-appellant
as 22.6.57  and both these documents have been signed by his
father and  were in existence ante litem motam. Hence, there
could be  no  ground  to  doubt the  genuineness  of  these
documents and  the High Court committed  a serious error of
law in brushing aside these important documents.
     Another circumstance  which weighed with the High Court
was that  when the boy was admitted in St. Paul's school, no
transfer certificate  appears to  have been  taken. This  by
itself is  not sufficient  to dislodge  the  case  of the
appellant unless a transfer certificate was taken and it had
shown that  the date of birth given there did not tally with
the documents (Exts. D-1 to D-4).
     It appears that as  the father  of the  appellant was
subsequently transferred  from Jaipur  sometime in June 1966
to Dhausa  and he  was admitted to the Sanskrit Pathshala in
Dhausa, for  the first time in this school the date of birth
of the appellant was  changed from  22.6.57 to 22.9.56. The
explanation given  by his father is that as by this time the
boy had become almost 10 years  of age and as clause 10 of
Chapter XVIII  of the Rajasthan Board of Secondary Education
Regulations required that no candidate could take the Higher
Secondary Examination  until he had attained  the age of 15
years on  the 1st  of October  of  the year  in  which the
Examination was held, he had to give an affidavit to change
this fact  in order  to enable his son (appellant) to appear
in the Higher Secondary  Examination. This position was not
disputed by  the State. The High  Court seems to have made
much of this lacuna and has gone
592
to the extent of labelling Gopal Sharma, appellant's father,
as a  liar having  gone to  the extent of  making  a  false
affidavit. Here also, we  think the  High Court has taken a
most artificial and technical view of the matter.  In our
country, it  is not uncommon for parents sometimes to change
the age of their  children in order to  get some  material
benefit either for appearing in examination or for entering
a particular  service which  would be  denied to  a child as
under the  original date  of birth he would be either under-
aged or ineligible.
     Thus, the appellant's father has given a cogent reason
for changing the date of birth and there is no reason not to
accept his  explanation particularly because the offence was
committed seven years after changing the date of birth, and,
therefore, there  could be  no other reason why Gopal Sharma
should have  gone to  the extent  of filing  an affidavit to
change the date, except for the reason that he has given.
     It was  also argued  that in  the insurance policy, the
appellant's mother  had shown  his age as 10  years without
giving the exact date of birth. The age of the appellant was
given as a rough estimate in the insurance policy but as the
policy was  not in  the name of the appellant, nothing turns
upon this  fact particularly  because by  and  large  giving
allowance for  a few months this way or that way the boy was
about 10  years old  when the  policy was  taken.  The High
Court, therefore,  was wrong  in  attaching  too  great  an
importance to this somewhat insignificant fact.
     For  these  reasons  we are  satisfied that  these
circumstances also  do not put the case of the appellant out
of court.
     These are the main reasons given by the High Court for
distrusting what,  in our opinion, seems to be unimpeachable
documentary evidence  produced by the appellant to show that
his exact  date of  birth was  22.6.57 and  not 22.9.56  as
altered by his father later.
     Another question  argued at  the Bar  was as to what is
the material  date which  is to be seen  for the purpose of
application of the Act.  In view of our finding that at the
time of the occurrence the appellant was undoubtedly a child
within the provisions of the Act, the further question if he
could be  tried as  a child  if he  had become more than 16
years by the time the case went up to the
593
court, does not survive because the Act itself takes care of
such a contingency. In this connection sections 3 and 26 of
the Act may be extracted thus:
 "3. Continuation  of inquiry in respect  of child
     who has ceased to be child.
 Where an  inquiry has been  initiated  against  a
     child and during the  course of such inquiry the child
     ceases  to be  such,  then,  notwithstanding  anything
     contained in  this Act or in any other law for the time
     being in force, the inquiry may be continued and orders
     may be made in respect of such person as if such person
     had continued to be a child.
 xx      xx  xx
 26. Special provision in respect of pending cases.
 Notwithstanding anything  contained in  this Act,
     all proceedings  in respect  of a child pending in any
     court in  any area on the date on which this Act comes
     into force in that  area, shall  be continued  in that
     court as  if this Act had not been  passed and if the
     court finds that the child has committed an offence, it
     shall record  such finding and, instead of passing any
     sentence in  respect of the child, forward the child to
     the children's court which shall pass orders in respect
     of that  child in accordance with the provision of this
     Act as  if it  has been satisfied on inquiry under this
     Act that the child has committed the offence."
     A combined reading of these two sections would clearly
show that  the statute takes care  of contingencies  where
proceedings in respect of a child were pending in any court
in any area on the date  on which the Act came into force.
Section 26  in terms lays down that the court should proceed
with the  case but  after having  found that  the child has
committed the  offence it  is debarred  from passing any
sentence but would forward the child to the children's court
for passing orders in accordance with the Act.
     As regards the general applicability of the Act, we are
clearly of   the  view that  the  relevant  date  for the
applicability of  the Act  is the  date on which the offence
takes place.  Children Act  was enacted  to  protect  young
children from the consequences of their
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criminal acts  on the  footing that  their mind at that age
could not  be said  to be mature for imputing mens rea as in
the case  of an adult. This being the intendment of the Act,
a clear finding has  to be  recorded that the relevant date
for applicability  of the  Act is  the date  on  which the
offence takes  place. It  is quite possible that by the time
the case  comes up  for trial, growing  in  age  being  an
involuntary factor, the child may have ceased to be a child.
Therefore, ss. 3 and 26 became necessary. Both the sections
clearly point  in the direction of the relevant date for the
applicability of  the Act  as the date of occurrence. We are
clearly of the view that the relevant date for applicability
of the Act so far as age of the accused, who claims to be a
child, is  concerned, is  the date of the occurrence and not
the date of the trial.
     The High  Court has  failed to take notice that the Act
being a piece of  social  legislation is  meant  for the
protection of  infants who  commit  criminal  offences and,
therefore,  its  provisions   should be   liberally and
meaningfully construed so as  to advance  the object of the
Act. Bearing this in mind we have construed the documents in
the instant case.
     We, therefore,  allow the appeal to  the extent that
while setting  aside the  judgment of the Sessions Judge, as
affirmed  by  the  High Court, we  direct  the  Additional
Sessions Judge, Jaipur, to try the accused and if he gives a
finding that  the accused  is guilty,  he shall forward the
accused to  the Children's  court for  receiving sentence in
accordance with the provisions of s. 26 of the Act.
H.L.C.  Appeal allowed.
595



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