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PETITIONER: RAMJI MISSIR AND ANOTHER

       Vs.

RESPONDENT: THE STATE OF BIHAR

DATE OF JUDGMENT: 06/12/1962

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA IMAM, SYED JAFFER SUBBARAO, K. MUDHOLKAR, J.R.

CITATION:  1963 AIR 1088            1963 SCR  Supl. (2) 745  CITATOR INFO :  F          1965 SC 444  (7,24,25)  F          1965 SC 843  (11)  RF         1972 SC1295  (9)  R          1972 SC2434  (5)  RF         1973 SC 780  (6)

ACT: Probation of Offenders-Age of offender-Applicability of Act- Discretion  of High Court-Probation of Offenders  Act,  1958 (20 of 1958), ss. 3, 4, 6, 11.

HEADNOTE: The  appellants,  R  and B, who  were  brothers,  were  pro. secuted  for  having assaulted S who as  a  result  suffered grievous injuries.  Both the appellants were found guilty by the Assistant Sessions judge, and sentenced to various terms of  imprisonment.  While B was convicted under ss.  307  and 326 of the Indian Penal Code, the conviction of R was under s.   324.  Section 6 (1) of the Probation of Offenders  Act, 1958, enacts  "When any person under twenty one years of age is  found guilty of having committed an  offence  punishable with imprisonment (but not with imprisonment for life),  the Court by which the person is found guilty shall not sentence him to imprisonment.............. Though B was 19 years old, s. 6 (1 was inapplicable to him as he was found guilty of an offence punishable with imprisonment for life.  R, the older brother  was  aged 2 1, but the trial  judge  considered  it inappropriate  to afford him the benefit of the  section  on the  ground that the. act of assault Was  premeditated.   On appeal, the High Court set aside the convictions of B and in their  place a finding of guilty under s. 324 of the  Indian Penal Code was recorded for which a sentence of 2 years  was imposed, and, as regards R, his conviction under s. 324  was maintained  but the sentence was reduced from 2 years  to  9 months.   On  the  question  of  the  applicability  of  the provisions  of the Act to the accused, the High  Court  took the  view  (1) that s. 6 (1) was inapplicable to  R  because though lie might have been under 21 years of age an the date of  the offence he was not a person under 21 years when  the Sessions  judge found him guilty, and (2) that though  under

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s.  1 1 of the Act, the High Court was competent to make  an order in favour of B, it was entirely discretionary for that Court  to  exercise  the power conferred on  it  under  that section,  and that in view of the fact that the court  below had  already dealt with the matter, it wag not desirable  to deal with the case of the appellant under the provisions  of the Act at that stage. 746 Held  :  (1)  that the age referred to in s. 6  (1)  of  the Probation  of Offenders Act, 1958, is that when  the  courts deal;  with the offender, that being the point of time  when the  court  has  to choose  between  the  two  alternatives, whether to sentence the offender to imprisonment or to apply to him the provisions of s. 6(1) of the Act. (2)that the courts mentioned in s. 11 of the Act, be  they trial  courts or courts exercising appellate  or  revisional jurisdiction,  are  empowered to exercise  the  jurisdiction conferred on courts not only under ss. 3 and 4 and the  con. sequential provisions but also under s. 6. (3)that  the power conferred on appellate or other  courts by  s. 1 1 (1) of the Act is of the same nature  and  chara- cteristics and subject to the same criteria and  limitations as that conferred on the courts under ss. 3 and 4. (4)that the provisions of s. 6. (1) restrict the  absolute and unfettered discretion implied by the word ,may" in S. 11 (1),  and the entirety of s. 6 (1) applies to guide or  con- dition the jurisdiction of the High Court under s. 11(1). (5)that  the crucial date for reckoning the age  where  an appellate  court  modifies the judgment of the  trial  judge when  s.  6  becomes  applicable to a  person  only  on  the decision of an appellate or a revisional court, is that upon which the trial court had to deal with the offender.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 144  of 1962. Appeal  by special leave from the judgment and  order  dated May 10, 1962, of the Patna High Court in Criminal Appeal No. 339 of 1961. B.K. P. Sinha and A. G. Ratnaparkhi, for the appellants. S.P.  Varma,  P.  D.  Menon and, B.  N.  Sachthey,  for  the respondent. 1962.   December 6. The judgment of the Court was  delivered by AYYANGAR, J.- This appeal by special leave granted by us  on September 7, 1962, raises for  747 consideration the proper construction of ss. 6 and 11 of the Probation  of Offenders Act, 1958 (XX of 1958),  hereinafter called the ,Act’. The  appellants are two brothers-Ramji and Basist.   It  was alleged  that these two assaulted one Sidhnath (P.W. 2)  who as  a result suffered grievous injuries Basist, the  younger brother  was  charged before the Assistant  Sessions  judge, Arrah,  with  the  commission of an offence  under  s.  307, Indian  Penal  Code,  for  the reason  that  the  injury  he inflicted was a bhala-blow under circumstances ""that if  by that act death had been caused he would have been guilty  of murder",  and as the injury actually sustained was  grievous he  was further charged with causing grievous hurt under  s. 326,  Indian Penal Code.  The elder brother who  too  caused hurt  to the victim was charged under s. 324,  Indian  Penal Code.   The  Assistant Sessions.Judge held  the  prosecution

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case  as alleged establish against both the accused.  It  is now  necessary  to mention that according  to  the  Sessions judge  Ramji was 21 years old and Basist 19.  Section  6  of the Act enacts :               "6. (1) When any person under twenty-one years               of age is found guilty of having committed  an               offence punishable with imprisonment (but  not               with  imprisonment  for life),  the  Court  by               which  the  person is found guilty  shall  not               sentence  him  to imprisonment  unless  it  is               satisfied that, having regard to the  circums-               tances of the case including the nature of the               offence  and  the character of  the  offender,               would not be desirable to deal with him  under               section  3  or  section 4, and  if  the  Court               passes  any  sentence of imprisonment  on  the               offender,  shall record its reasons for  doing               so.               (2)   For  the  purpose of  satisfying  itself               Whether  it  would not be  desirable  to  deal               under section 3               748               or  section 4 with an offender referred to  in               subsection  (1),  the Court shall call  for  a               report from the probation officer and consider               the report, if any, and any other  information               available to it relating to the character  and               physical   and   mental   condition   of   the               offender." The  terms of this section excluded the application  of  its provisions  to  Basist who was found guilty  of  an  offence punishable with imprisonment for life (both ss. 307 and 326, Indian  Penal  Code).  He accordingly  sentenced  Basist  to undergo  rigorous imprisonment for six years under  s.  307, Indian  Penal Code, and to four ’years under s. 326,  Indian Penal  Code, the sentences to run concurrently.  As  regards Ramji, the elder brother, he considered it inappropriate  to afford  him the benefit of this provision and  recorded  his finding on this matter in these terms:               "So far as accused Ramji is concerned I am not               inclined to take recourse to the provisions of               the Probation of Offenders Act, 1958,  because               the  act  of assault on the informant  on  the               part of this accused is premeditated." He  sentenced him to undergo rigorous imprisonment  for  two years under s. 324, Indian Penal Code. Both  the  accused filed an appeal to the High  Court.   The learned  Single  judge who heard the appeal  considered  the evidence  in  the case and the circumstances  in  which  the injury was inflicted and held that there was no intention on the  part of Basist to cause grievous hurt to P.W.  2,  with the result that as against him the’ conviction under s.  307 as  well as that under s. 326, Indian Penal Code,  were  set aside and in their place he recorded a finding of guilty  in respect  of an offence under s. 324, Indian Penal Code,  for which he imposed a sentence of rigorous imprisonment for two years.   As against Ramji the conviction was maintained  but being informed by 749 counsel     that  that  accused  had  been  suffering   from tuberculosis the sentence of imprisonment was reduced from 2 years to 9 months. It was urged before the High Court that the reasons assigned by  the Assistant Sessions judge for refusing to  apply  the provisions  of  s. 6 of the Act to accused  Ramji  were  not

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proper.  This  submission was, however, repelled  since  the learned  judges considered the section inapplicable to  that accused  because, though he might have been "under 21  Years of  age" on the date of the offence (October 17, 1960),  "he was  not  a person under 21 years of age" on May  24,  1961, when  the Sessions judge found him guilty and sentenced  him to a term of imprisonment, holding that the crucial date  on which  the age had to be  determined being not the  date  of the  offence but the date on which as a result of a  finding of guilty sentence had to be passed against the accused. As  regards Basist also, it was urged before the High  Court that  in view of the alteration in the finding  recorded  as regards his guilt, the beneficial provisions of s. 6 of  the Act became applicable to him, the learned judge holding that he  could pass the same order as the trial court could  have done because of the provisions contained in s. 11 of the Act reading :               "11. (1) Notwithstanding anything contained in               the Code or any other law, an order under this               Act may be made by any Court empowered to  try               and sentence the offender to imprisonment  and               also by the High Court or any other Court when               the  case  comes  before it on  appeal  or  in               revision.               (2)   Notwithstanding  anything  contained  in               the  Code, where an order under section  3  or               section  4  is made by any  Court  trying  the               offender (other than a High Court), an  appeal               shall lie to the               750               Court  to which appeals ordinarily   lie  from               the sentences of the former Court.               (3)   In  any  case where  any  person  under.               twenty.  one years of age is found  guilty  of               having  committed an offence and the Court  by               which he is found guilty declines to deal with               him  under section 3 or section 4, and  passes               against him any sentence of imprisonment  with               or        without  fine from which  no  appeal               lies  or is preferred,  then,  notwithstanding                             anything  contained  in the Code or  any  othe r               law, the Court to which appeals ordinarily lie               from  the sentences of the former  Court  may,               either of its own motion or on an  application               made  to  it by the convicted  person  or  the               Probation  officer, call for and  examine  the               record of the case and pass such order thereon               as it thinks fit.               (4)   When  an  order  has  been  made   under               section  3  or  section 4  in  respect  of  an               offender,  the  Appellate Court  or  the  High               Court in the exercise of its power of revision               may set aside such order and in’ lieu  thereof               pass  sentence on such offender  according  to               law               Provided that the Appellate Court or the  High               Court in revision shall not inflict a  greater               punishment  than might have been inflicted  by               the  Court  by which the  offender  was  found               guilty."               The  learned judge however, declined to do  so               observing:               "No  doubt, under the provisions of s.  11  of               the  Probation of Offenders Act this Court  is

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             competent to make an order, but it is entirely               discretionary  for this Court to exercise  the               power  conferred on it under s. II.  In,  view               of  the fact that the Court below has  already               dealt with                751               this matter, though not very satisfactorily, I               do not consider it desirable to deal with  the               cases of these appellants under the provisions               of  the  Probation of Offenders  Act  at  this               stage." and instead, passed the sentence of imprisonment as  already mentioned.   It is the correctness of these orders  refusing to  apply the provisions of s. 6 of the Act to the cases  of the  appellants  that is raised for  consideration  in  this appeal. Taking  first  the  case of Ramji , the  elder  brother,  we entirely agree with the High Court in their construction  of s. 6. The question of the age of the person is relevant  not for  the purpose of determining his guilt but only  for  the purpose  of the punishment which he-should suffer  for  the- offence of which he has been found, on the evidence, guilty. The object of the Act is to prevent the turning of  youthful offenders into criminals by their association with  hardened criminals  of mature age within the walls of a prison.   The method  adopted  is to attempt their   possible  reformation instead  of  inflicting on them the  normal  punishment  for their  crime.  If this were borne in mind it would be  clear that  the  age referred to by the opening words of  s.  6(1) should  be that when the court is dealing with the  offender that  being the point of time when the court has  to  choose between  the two alternatives which the Act in  supersession of  the  normal penal law vests in it,  viz.,  sentence  the offender  to imprisonment or to apply to him the  provisions of  S.  6(1) of the Act.  As the High Court has  found  that Ramji was not a person under the age of 21 on May 24,  1961, when.  the  learned Sessions judge found him  guilty  it  is clear that s. 6(1) of the Act has no application- to him. The position in regard to the second appellant Basist--tands on an entirely different footing.  He was said to be of  the age of 19 by the Sessions judge 752 which is apparently a reference to the time when the offence was  committed.  If so, he would have been about 20  at  the time  when the Sessions judge found him guilty  of  offences under ss. 307 and 326, Indian Penal Code, and possibly  also below  21  at  the  time when the  High  Court  altered  his conviction into one under s. 324, Indian Penal Code. If  by  reason of his age, and the offence of which  he  was been  found  guilty  the  provisions  of  s.  6(1)  are  not excluded,  the  question that has next to be  considered  is whether  the  learned judge had an absolute  and  unfettered discretion  to  pass or refuse an order under  ’the  Act  by virtue  of  the  terms  of s. 11 of  the  Act.   This  would obviously turn on (1) whether or not s. 6(1) was  applicable to the High Court, and  (2) the proper construction. of  the terms  of  s.  11 which empowers  appellate  and  revisional courts to pass orders under the Act. It  was urged by learned Counsel for the appellant that  the High Court when it recorded a finding that Basist was guilty of an offence under s. 324, Indian Penal Code, was  squarely within  the  words  "the court by which a  person  is  found guilty"  occurring in s. 6(1) as it was only by  that  Court that  for the first time the accused was found guilty of  an offence which was not excluded by the opening words of  that

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section.   Learned Counsel relied for this position  on  the judgment  of High Court of Madras in Narayananwami Naidu  v. Emperor  (1)  following a ,decision of  the  Allahabad  High Court  to  a similar effect in Emperor v.  Birch  (2).   The question that arose in the first of the above cases  related to  the  scope of the words "Court before whom  he  is  con- victed" occurring in s. 562, Code of Criminal Procedure,  as it  originally  stood.   The provision in s.  562,  Code  of Criminal Procedure, is somewhat in pari materia with s. 4 of the  Act wherein a Person found guilty of  having  committed offences not punishable (1) (1906) I.L.R. 29 Mad. 567. (2) (1902) I.L.R. 24 All. 306. 753 with  death or imprisonment for life may, instead  of  being sentenced  to imprisonment, be released on entering  into  a bond.  In the Code as originally enacted which the  decision referred to had to deal with, there was no express provision as  regards  the power of appellate courts to  pass  similar orders.  The accused in that case was tried and convicted by a  magistrate under sg. 447 and 352, Indian Penal Code,  and sentenced  to undergo rigorous imprisonment for  two  weeks. The  accused filed an appeal and the Deputy  Magistrate  who heard it while affirming the conviction directed his release on  his  executing  a bond applying to  him  the  provisions contained  in  s.  562, Code  of  Criminal  Procedure.   The District  judge  considered that the Deputy  Magistrate  had exceeded his jurisdiction in making this order and  referred the question to the High Court.  The learned judges rejected the  reference observing that the words ""Court before  whom he  is convicted’ used in s.562 were not intended  to  limit the  power of making orders under that section to the  court of first instance. It  might be mentioned that the Code has since been  amended by the addition of sub-s. (2) which runs :               "An order under this section may be made by an               appellate  court  or by the  High  Court  when               exercising its powers of revision." so  that  it  is no longer necessary  for  an  appellate  or revisional  court to rely on any construction of  the  words ",’the  court  by  which the person  is  found  guilty"  for invoking  or  exercising- its  jurisdiction.   The  position therefore  comes to this-the words referring to ""the  court by  which  a  per-son is found guilty" are  wide  enough  to include an appellate court, and particularly so where it  is the appellate court alone which by reason of its finding  on the  guilt of the accused becomes for the first time  vested with the power or the duty to act under the section. 754 Undoubtedly if s. II were attracted to the case, then  there would  be no need for invoking the Jurisdiction of the  High Court  under  s. 6, and indeed in  those  circumstances  the proper  construction of s. 6 itself would be to  exclude  an appellate  or revisional court since a redundancy could  not have been intended by the statute. The  first question would therefore be to ascertain  whether the jurisdiction or powers envisaged by s. 6(1) are  within’ the scope of the jurisdiction conferred by s. 11.  The power conferred on the High Court is to pass ""an order under  the Act."  One  is thrown back on the Act for  determining  what these are.  They are: (1)Under s. 3 a court might order the release of a  person found  guilty  of an offence of the type  specified  in  the section after due admonition. (2)Under  s. 4 an order may be passed in  circumstances  set

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out in it releasing such person on entering into a bond with or without sureties or pass a supervision order. (3)Orders which are consequential on orders under s. 3  or s. 4 like those for which provision is made by ss. 5 & 9. So far  as s. 6 is concerned it is, to say the least,  doubtful whether  it.  involves the "’passing of an order",  for  the operative  words are that the court finding a person  guilty refrains  from passing any sentence.  An injunction  enacted by this Act against passing a sentence of imprisonment which the  court under the normal law is empowered or enjoined  to pass can hardly be termed ",passing an order" under the Act. If  this  were  correct, the result would  be  that  on  the reasoning  which  the High Courts of  Madras  and  Allahabad adopted  to construe the words in s. 562, of the Code,  the- High Court, when hearing an appeal, would be subject to  the provisions of s. 6. 755 It is however possible that the words in s. 11 (1)  ""’,pass an order under the Act" are not to be construed so  strictly and literally, but to be understood to mean "to exercise the powers  or  Jurisdiction conferred by the Act."  This  wider interpretation  might perhaps be justified by the scope  and object   of   this  section.   Section  11   is   to   apply ""notwithstanding anything in the Code or any other law"  to all courts empowered to sentence offenders to  imprisonment. TO  read a beneficial provision of this universal type in  a restricted sense, so as to confine the power of these courts to the exercise of the powers under ss. 3 and 4 alone  would not,  in our opinion, be in accord with sound principles  of statutory interpretation.  We are therefore inclined to hold that  the Courts mentioned in s. 11 be they trial courts  or exercising appellate or revisional jurisdiction are  thereby empowered  to exercise the jurisdiction conferred on  Courts not only under ss. 3 and 4 and the consequential  provisions but also under s. 6. Accepting  therefore the interpretation of S. 11  (1)  which was  urged  by Counsel for the respondent, that  the  courts mentioned  in it could pass orders under ss. 3, 4 or 6,  the question  next to be considered relates to the incidents  of that  jurisdiction with regard to the amount and  nature  of discretion vested in these courts. It  was submitted on behalf of the appellant that the  power conferred  on the High Court and other courts by s.  11  (1) was neither more nor less than those of the court under s. 6 (1)  and that the former were bound to exercise it,  subject to the same conditions and limitations as are set out in the latter provision.  Stated in other words the  interpretation suggested was that the terms of s.6 had, so to speak, to  be read into the jurisdiction of the courts acting under s.  II (1).   On  the  other  hand  the  contention  urged  by  the respondent  was  that s. II (1) had to be read  on  its  own language and so read it conferred on 756 the  courts  mentioned  in it, an  absolute  and  unfettered discretion  "to pass or not to pass an order under the  Act" as  they thought fit having regard to the  circumstances  of each case. A considerable portion of the argument by the respondent was based  on  the import of the facultative verb "may"  in  the words "’may be made" occurring in the operative part of  the sub-section  as  conferring  a discretion  and  that  as  no limitations were placed’ by this or any other section on the exercise  of this discretion, the same should be held to  be unfettered  and  therefore capable of  being  exercised,  no doubt,  on  judicial  principles  but  not  subject  to  any

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statutory limitations.  It might be mentioned that from  the relevant passage of the judgment of the High Court which  we have  extracted, it would appear that the learned judge  has proceeded on this interpretation of S. 11. Though  the word "may" might connote merely an  enabling  or permissive power in the sense of the usual phrase ""it shall be  lawful",  it  is  also capable  of  being  construed  as referring to a compellable duty, particularly when it refers to a power conferred on a court or other judicial authority. As observed in Maxwell on Statutes               "Statutes  which authorise persons to do  acts               for  the  benefit  of others,  or,  as  it  is               sometimes  said,  for the public good  or  the               advancement of justice, have often given  rise               to  controversy when conferring the  authority               in  terms simply enabling and  not  mandatory.               In enacting that they ’may’ or ’shall’ if they               think fit, or ’&hall have power,’ or that, ’it               shall  be lawful’ for them to do such acts,  a               statute  appears to use the language  of  mere               permission but it has been so often decided as               to  have  become an axiom that in  such  cases               such expressions                757               may have-to, say the least-a compulsory force. The  fact  that  the power is conferred  on  a  Court  might militate   against  the  literal  interpretation  of   "may" suggested   by  the  respondent.   This  apart,  the   power conferred  by s. 11(1) is to pass "’an order under the  Act" and  the question arises as to the precise import  of  these words, and in particular whether these words would not imply that  the  order to be passed would be subject to  the  same limitations or conditions as the orders under what might  be termed  the  primary  provisions  of the  Act.   Thus  s.  3 empowers  a court to release certain offenders on  probation of  good  conduct  after due admonition, and  it  lays  down certain  tests  as a guidance or the bases upon  which  that discretion  is  to  be  exercised :  (1)  that  no  previous conviction should have been proved against him, and (2) that the  court by which the person is found guilty should be  of the opinion that, having regard to the circumstances of  the case  including the nature of the offence and the  character of  the offender it is expedient so to do.  Similarly, s.  4 empowers  a court to release certain offenders on  probation of  good  conduct,  The criteria laid down  there.  and  the guidance  set out is that the court by which the  person  is found guilty should be of opinion that, having regard to the circumstances  of  the  case including  the  nature  of  the offence  and the character of the offender, it is  expedient to release him, on probation of good conduct, with a proviso that the power is not to be exercised unless the court  were satisfied that the offender or his surety has :a fixed place of  abode or regular occupation in the place over which  the court  exercises  jurisdiction or in which the  offender  is likely  to live during the period for which he  enters  into the bond. Would it be a proper construction of s. 11 (1) to hold  that the High Court etc. could pass orders in appeal or  revision without reference to these standards, 758 tests  or guidance which the statute has prescribed for  the primary courts?  We are clearly of the opinion that this  is capable  only  of  a  negative answer  and  that  the  power conferred  on appellate or other courts by s. II (1) was  of the same nature and characteristics and subject to the  same

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criteria  and  limitations as that conferred on  the  courts under ss. 3 & 4. We are confirmed in this view by the  terms of  s. 11(3).  If this were so it would not be  possible  to adopt  a, different rule of interpretation when one came  to consider  the power under s. 6. It cannot, for instance,  be suggested  that  the  High Court  could  in  its  discretion exercise the power under s. 6 in the case of a person who is above  the age of 21, nor where a person is found guilty  of an  offence punishable with death or imprisonment for  life. These  limitations  on the exercise of the  discretion  have surely to be gathered only from the terms of s. 6(1).  If s. 6(1) applies so far to restrict the absolute and  unfettered discretion implied by the word "may", it appears to us  that logically the conclusion is inescapable that the entirety of s.  6(1) applies to guide or condition the  jurisdiction  of the  High Court under s. 11(1).  We there. fore  reject  the submission  made to us on behalf of the respondent  that  an appellate court has an unfettered discretion in dealing with a  case  which  comes before it under s.  11  and  that  its discretion and powers are not to be governed by the terms of s. 6(1). The question next to be considered is the result of applying the terms of s. 6(1) to a person in the position of  Basist. It  was not disputed by learned counsel for  the  respondent that the learned Judge of the High Court failed to  consider the case of this accused with reference to the terms of s. 6 since  he  has  proceeded  on  the  basis  that  he  had  an unfettered  discretion  in  the  matter  and  which  in  the circumstances  of  the present case he was not  inclined  to exercise  in favour of the accused.  The order of  the  High Court in so far as it relates to the second appellant- 759 Basist-must  therefore  be  set aside  and  the  High  Court directed to exercise its discretion on the basis that it was judging the matter with reference to the criteria laid  down in s. 6. We  shall  now proceed to consider one question  which-  was mooted before us in regard to the crucial date for reckoning the  age where an appellate court modifies the  judgment  of the  trial judge, when s. 6 becomes applicable to  a  person only on the decision of an appellate or a revisional  court. Is the age of the offender to be reckoned as at the date  of the  judgment of the trial judge or is it the date when  the accused  is, for the first time, in a position to claim  the benefit  of  s.  6. We consider that on  the  terms  of  the section,  on grounds of logic as well as on the theory  that the order passed by an appellate court is the correct  order which  the trial court should have passed, the crucial  date must be that upon which the trial court had to deal with the offender.   In this view as Basist was admittedly  below  21 years  of age at the time of the judgment of  the  Assistant Sessions  judge,  s.  6 was not  inapplicable  to  him  even assuming  he was above that age by the date of the order  in appeal. The appeal is accordingly allowed in part i.e., in regard to the  second  appellant-Basist and is remanded  to  the  High Court to consider the proper order to be passed in his  case by  applying  the  provisions of s. 6 of  the  probation  of offenders Act, 1958. Appeal allowed in part. 760