PETITIONER:
GOPI CHAND
Vs.
RESPONDENT:
THE DELHI ADMINISTRATION
DATE OF JUDGMENT:
20/01/1959
BENCH:
GAJENDRAGADKAR, P.B.
BENCH:
GAJENDRAGADKAR, P.B.
DAS, SUDHI RANJAN (CJ)
DAS, S.K.
WANCHOO, K.N.
HIDAYATULLAH, M.
CITATION:
1959 AIR 609 1959 SCR Supl. (2) 87
CITATOR INFO :
D 1960 SC 457 (18,39)
R 1976 SC 714 (81)
RF 1977 SC1884 (12)
RF 1991 SC1117 (11)
ACT:
Criminal Trial--Temporary enactment--Provision for trial of
specified offences under summons procedure in notified
areas--Constitutional validity--Applicability to Proceedings
Pending on expiry of enactment--Absence of saving
provision--East Punjab Public Safety Act, 1949 (Punj. 5 of
1949), ss. 36(1), 20--Constitution of India, Art.14--General
Clauses Act, 1879 (10 of 1879), s. 6.
HEADNOTE:
Section 36(1) of the East Punjab Public Safety Act, 1949,
(Punj. 5 Of 1949), which was passed in the wake of the
partition disturbances in India with a view to ensure public
safety and the maintenance of public order, provided that
offences mentioned therein land committed in the area
declared to be dangerously disturbed under S. 20 Of the Act,
should be tried under the summons procedure prescribed by
Ch. XX of the Code of Criminal Procedure. By the first
notification issued under s. 2o of the Act, the whole of the
Province of Delhi was declared to be a dangerously disturbed
area; subsequently the second notification purported to
cancel the first. The third notification then sought to
modify the second by inserting into it the words "except as
respect things done or omitted to be done before this
notification ". The fourth and last notification issued
under s. 36(1) of the Act sought to save proceedings
thereunder pending after the cancellation of the first
notification. The appellant who was put up for trial in
three cases for offences ordinarily triable under the
warrant procedure, was tried under the summons procedure
according to s. 36(1) of the Act and the first notification
and the trials were continued even after the expiry of the
Act in respect of substantial parts of them under the same
procedure and ended in his conviction which was affirmed by
the High Court in appeal. The Act was a temporary Act and
contained no provision saving pending proceedings. 'It was
contended on behalf of the appellant that the first part of
S. 36(1) of the Act in treating the disturbed areas as a
class by themselves and providing a uniform procedure for
the trial of specified offences violated Art. 14 Of the
Constitution and that the continuance of the trials under
the summons procedure even after the expiry of the Act was
invalid.
Held, that the two tests of the validity of the
classification made by the Legislature were, (1) that the
classification must be based on an intelligible differentia
and (2) that this differentia must be reasonably connected
with the object of the legislation. Thus tested, there
could be no doubt, in the present case, that the
classification on a geographical basis made by the impugned
88
Act between areas that were dangerously disturbed and other
areas, in the interest of speedy trial of offences, was
perfectly justified.
Ram Krishna Dalmia v. justice Tendolkar, [1959] S.C.R. 279,
relied on.
Lachmandas Kewalram Ahuja v. The State of Bombay, [1952]
S.C.R. 710, held inapplicable.
But since the impugned Act was a temporary Act and contained
no appropriate provision saving the summons procedure
prescribed by it, that procedure could not, on the expiry of
the Act, apply to the cases pending against the appellant.
Krishnan v. The State of Madras, [1951] S.C.R. 621, relied
on.
Wicks v. Director of Public Prosecutions, [1947] A.C.
362, referred to.
The third and the fourth notifications, obviously intended
to cure the absence of a saving provision in the Act, were
'wholly outside the authority conferred on the delegate by
s. 2o or s. 36(1) of the Act and must be held to be invalid.
With the issue of the second notification, therefore, the
entire province of Delhi ceased to be a dangerously
disturbed area.
It was erroneous to apply by analogy the provisions of s. 6
of the General Clauses Act to cases governed by a temporary
Act, such as the one in question, which did not contain the
appropriate saving provision and contend that since the
trials had commenced validly, their continuance under the
same procedure even after the declaration had ceased to
operate and subsequent orders of conviction and sentence
passed therein were valid as well.
Srinivasachari v. The Queen, (1883) I.L.R. 6 Mad. 336,
Mukund v. Ladu, (1901) 3 Bom. L.R. 584 and Gardner v.
Lucas, (1878) 3 A.C. 582, held inapplicable.
Ram Singh v. The Crown, A.I.R. 1950 East Punjab 25, dis-
approved.
Syed Qasim Razvi v. The State of Hyderabad, [1953] S.C.R.
589, referred to and distinguished.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 25-27
of 1955.
Appeals from the judgments and order dated February 1, 1955,
of the Punjab High Court (Circuit Bench), Delhi in Cr.
Appeals Nos. 5-D, 6-D and 13-D of 1952, arising out of the
judgments and orders dated December 22, 1951, of the 1st
Class Magistrate, New Delhi in Criminal Cases Nos. 220/2,
221/2 and 223/2 of 1949.
89
Ram Lal Anand and S. N. Anand, for the appellant.
H. J. Umrigar and T. M. Sen, for the respondent.
1959. January 20. The Judgment of the Court was delivered
by
GAJENDRAGADKAR J.-These three appeals have, been filed with
certificates granted by the High Court of Punjab under Art.
134(1) (c) of the Constitution and they arise from three
criminal cases filed against the appellant. The appellant
Gopi Chand was the chief cashier, and Hukam Chand was an
assistant cashier, in the United Commercial Bank Ltd., New
Delhi. They were charged with the commission of offences
under s. 409 in three separate cases. In the first case No.
223/2 of 1949, the prosecution case was that on or about
April 8, 1948, both had agreed to commit, or cause to be
committed, criminal breach of trust in respect of the funds
of the Bank where they were employed; and in pursuance of
the said agreement they had committed criminal breach of
trust in respect of the total amount of Rs. 1,65,000. They
were thus charged under ss. 408, 409 and 120B of the Indian
Penal Code. The appellant was convicted of the offence
under s. 409 read with s. 120 and sentenced to rigorous
imprisonment for seven years. Against this order of
conviction and sentence he preferred an appeal to the High
Court of Punjab (No. 5-D of 1952). The High Court confirmed
his conviction but altered the sentence imposed on him by
directing that he should suffer four year’s rigorous
imprisonment and pay a fine of Rs. 10,000 or in default
suffer rigorous imprisonment for fifteen months. The order
of conviction and sentence thus passed gives rise to
Criminal Appeal No. 25 of 1955 in this Court.
In the second case (No. 221/2 of 1949) the appellant was
charged with having committed an offence under ss. 408 and
409 of the Indian Penal Code in that he had committed
criminal breach of trust in respect of an amount of Rs.
23,772-8-6. The trial magistrate ,convicted the appellant
of the said offence and sentenced him to suffer rigorous
imprisonment for five years.
12
90
On appeal (No. 6-D of 1952) the order of conviction was
confirmed but the sentence imposed on him was reduced to
three years’ rigorous imprisonment. This order has given
rise to Criminal Appeal No. 26 of 1955
in this Court.
In the third case (No. 220/2 of 1949) the appellant, Hukam
Chand and Ganga Dayal were charged with having committed an
offence under s. 409/408 read with s. 120B of the Indian
Penal Code in that all of them had agreed to commit criminal
breach of trust in respect of the sum of Rs. 10,000
belonging to the Bank and that in pursuance of the said
agreement they had committed the criminal breach of trust in
respect of the said amount. The trial magistrate convicted
the appellant of the offence charged and sentenced him to
four year’s rigorous imprisonment. On appeal (No. 13-D of
1952) the High Court confirmed the conviction but reduced
the sentence to two years’ rigorous imprisonment. From this
order arises Criminal Appeal No. 27 of 1955 in this Court.
The appellant has obtained a certificate from the High Court
under Art. 134(1) (c) of the Constitution because he seeks
to challenge the validity of the order of conviction and
sentence passe against him in the three cases on the ground
that the proceedings in all the said cases are void. He
contends that, whereas the charges framed against him had to
be tried according to the procedure prescribed for the trial
of warrant cases, the learned trial magistrate tried all the
cases according to the procedure prescribed for the trial of
summons cases and that makes void all the proceedings
including the final orders of conviction and the sentences.
The point arises in this way. The East Punjab Public Safety
Act, 1949 (Punj. 5 of 1949), hereinafter called the Act,
which came into force on March 29, 1949, was passed to
provide for special measures to ensure public safety and
maintenance of public order. It is common ground that the
offences with which the appellant was charged would normally
have to be tried under the procedure prescribed by ch. XXI
of the Code of Criminal Procedure for the trial of warrant
91
cases but in fact they have been tried under the procedure
prescribed by ch. XX for the trial of summons cases. The
summons procedure differs from the warrant procedure in some
material points. Under the former procedure a charge is not
to be framed while under the latter a charge has to be
framed under s. 254 of the Code. Similarly an accused
person gets( only one chance of cross-examining the
prosecution witnesses under the summons procedure whereas
under the warrant procedure he is entitled to cross-examine
the said witnesses twice, once before the framing of the
charge and again after the charge is framed. The appellant
concedes that the cases against him were tried according to
the summons procedure by reason of s. 36 of the Act and the
notification issued under it; but be contends that the
relevant provisions of the Act are ultra vires and he
alternatively argues that the proceedings in respect of a
substantial part were continued under the summons procedure
even after the Act had expired and the relevant
notifications had ceased to be operative. That is how the
validity of the trial and of the orders of conviction and
sentence is challenged by the appellant.
It would be relevant at this stage to refer to the material
provisions of the Act and the relevant notifications issued
under it. The Act came into force on March 29, 1949. It
was passed to provide for special measures to ensure public
safety and maintenance of public order. Section’ 36 of the
Act prescribes the procedure for the trial of specified
offences; under sub-s. (1) all offences under this Act or
under any other law for the time being in force in a
dangerously disturbed area, and in any other area all
offences under this Act and any other offence under any
other law which the Provincial Government may certify to be
triable under this Act, shall be tried by the courts
according to the procedure prescribed by the Code, provided
that in all cases the procedure prescribed for the trial of
summons cases by ch. XX of the Code shall be adopted,
subject, in the case of summary trials, to the provisions of
ss. 263 to 265 of the Code. For the avoidance of doubt sub-
s. (2) provided that
92
the provisions of sub-s. (1) shall apply to the trial of
offences mentioned therein committed before the com-
mencement of this Act, and in a dangerously disturbed area
committed before the date of the notification under s. 20,
in respect of it. Under s. 20 the Provincial Government is
authorised by notification to declare that the whole or any
part of the Province as may be specified in the notification
to be a dangerously disturbed area.
Four notifications were issued under s. 20. By the first
notification issued on July 8, 1949, the whole of the
Province of Delhi was declared to be a dangerously disturbed
area by the competent authority. It appears that on
September 28, 1950, the said authority issued the second
notification cancelling the first notification with effect
from October 1, 1950. This notification was followed by the
third notification on October 6, 1950, which purported to
modify it by inserting the words ” except as respect things
done or omitted to be done before the date of this
notification after the words ” with effect from October 1,
1950 in other words, this notification purported to
introduce an exception to the cancellation of the first
notification caused by the second, and in effect it
purported to treat the Province of Delhi as a dangerously
disturbed area in respect of things done or omitted to be
done before the date of the said notification. The last
notification was issued on April 7, 1951. This notification
was issued by the Chief Commissioner of Delhi in exercise of
the powers conferred by sub-s. (1) of s. 36 of the Act, and
by it he certified as being triable under the said Act in
any area within the State of Delhi not being a dangerously
disturbed area the following offences, viz., any offence
under any law other than the aforesaid Act of which
cognisance had been taken by any magistrate in Delhi before
October 1, 1950, and the trial of it according to the
procedure prescribed in ch. 4 of the said Act was pending in
any court immediately before the said date and had not
concluded before the date of the certificate issued by the
notification.
Let us now mention the facts about the trial of the
93
three cases against the appellant about which there is no
dispute. , The First Information Report was filed against
the appellant on June 30, 1948. The trial commenced on July
18, 1949, and it was conducted according to the procedure
prescribed by ch. XX of the Code’. Some prosecution
witnesses were examined and cross-examined before January
26, 1950, and the’ whole of the prosecution evidence was
recorded before August 14, 1951. The evidence for the
defence was recorded up to November 14, 1951, and the
learned magistrate pronounced his judgments in all the cases
on December 22, 1951.
For the appellant, Mr. Ram Lal Anand contends that s. 36(1)
of the Act is ultra vires because it violates the
fundamental right of equality before law guaranteed by Art.
14 of the Constitution. His argument is that since offences
charged against the appellant were triable under the warrant
procedure under the Code, the adoption of summons procedure
which s. 36(1) authorised amounts to discrimination and
thereby violates Art. 14. It is the first part of sub-s.
(1) of s. 36 which is impugned by the appellant. The effect
of the impugned provisions is that, after an area is
declared to be dangerously disturbed, offences specified in
it would be tried according to the summons procedure even
though they have ordinarily to be tried according to warrant
procedure. The question is whether in treating the
dangerously disturbed areas as a class by themselves and in
providing for one uniform procedure for the trial of all the
specified offences in such areas the impugned provision has
violated Art. 14.
The point about the construction of Art. 14 has come before
this Court on numerous occasions, and it has been
consistently held that Art. 14 does not forbid reasonable
classifications for the purpose of legislation. In order
that any classification made by the Legislature can be held
to be permissible or legitimate two tests have to be
satisfied. The classification must be based on an
intelligible differentia which distinguishes persons or
things grouped together in one class from others left out of
it, and the differentia must have a
94
reasonable or rational nexus with the object sought to be
achieved by the said impugned provision. It is true that,
in the application of these tests uniform approach might not
always have been adopted, or, in dealing with the relevant
considerations emphasis might have shifted; but the validity
of the two tests that have to be applied in determining the
vires of the impugned statute under Art. 14 cannot be
doubted.
In the present case the classification has obviously been
made on a territorial or geographical basis. The
Legislature thought it expedient to provide for the speedy
trial of the specified offences in areas which were notified
to be dangerously disturbed areas ; and for this purpose the
areas in the State have been put in two categories, those
that are dangerously disturbed and others. Can it be said
that this classification is not founded on an intelligible
differentia.? In dealing with this question it would be
relevant to recall the tragedy of the holocaust and the
savage butchery and destruction of property which afflicted
several parts of the border State of Punjab in the wake of
the partition of India. Faced with the unprecedented
problem. presented by this tragedy, the Legislature thought
that the dangerously disturbed areas had to be dealt with on
a special footing; and on this basis it provided inter alia
for the trial of the specified offences in a particular
manner. That obviously is the genesis of the impugned
statute. That being the position, it is impossible to hold
that the classification between dangerously disturbed areas
of the State on the one hand and the non_ disturbed areas on
the other was not rational or that it was not based on an
intelligible differentia. Then again, the object of the Act
was obviously to ensure public safety and maintenance of
public order; and there can be no doubt that the speedy
trial of the specified offences had an intimate rational
relation or nexus with the achievement of the said object.
There is no doubt that the procedure prescribed for the
trial of summons cases is simpler, shorter and speedier; and
so, when the dangerously disturbed areas were facing the
problem of unusual civil commotion and strife, the
Legislature was justified
95
in enacting the first part of s. 36 so that the cases
against persons charged with the commission of the specified
offences could be speedily tried and disposed of. We are,
therefore, satisfied that the challenge to the vires of the
first part of sub-s. (1) of s. 36 cannot be sustained. In
this connection we may refer to the recent decision of this
Court in Ram Krishna Dalmia v. Justice Tendolkar (1). The
judgment in that case has considered the previous decisions
of this Court on Art. 14, has classified and explained them,
and has enumerated the principles deducible from them. The
application of the principles there deduced clearly supports
the validity of the impugned provisions.
It is, however, urged by Mr. Ram Lal Anand that the decision
of this Court in Lachmandas Kewalram Ahuja v. The State of
Bombay (2) supports his contention that s. 36(1) is invalid.
We are not impressed by this argument. In Ahuja’s case (2)
the objects of the impugned Act were the expediency of
consolidating and amending the law relating to the security
of the State, maintenance of public order and maintenance of
supplies and services essential to the community in the
State of Bombay. These considerations applied equally to
both categories of cases, those referred to the Special
Judge and those not so referred; and so, on the date when
the Constitution came into force, the classification on
which s. 12 was based became fanciful and without any
rational basis at all. That is why, according to the
majority decision s. 12 contravened Art. 14 of the
Constitution and as such was ultra vires.
It is difficult to see how this decision can help the
appellant’s case. The impugned provision in the present
case makes no distinction between one class of cases and
another, much less between cases directed to be tried
according to the summons procedure before January 26, 1950,
and those not so directed. The summons procedure is made
applicable to all offences under the Act or under any other
law for the time being in force; in other words, all
criminal offences are ordered to be tried according to the
summons procedure in the dangerously disturbed areas. That
being
(1) A.I.R. 1958 S.C. 538.
(2) [1952] S.C.R. 710, 731.
96
so, we do not think that the decision in Ahuja’s case (1)
has any application at all. Thus we feel no difficulty in
holding that the impugned provision contained in the first
part of s. 36(1) is constitutional and valid.
Then it is urged that the Act which came into force on March
29, 1949, was due to expire and did expire on August 14,
1951, and so the proceedings taken against the appellant
under the summons procedure after the expiration of the
temporary Act were invaid. It is argued that, in dealing
with this point, it would not be permissible to invoke the
provisions of s. 6 of the General Clauses Act because the
said section deals with the effect of repeal of permanent
statutes. This argument no doubt is well-founded. As
Craies has observed, ” as a general rule, unless it contains
some special provisions to the contrary, after a temporary
Act has expired no proceedings can be taken upon it and it
ceases to have any further effect ” (2). This principle has
been accepted by this Court in Krishnan v. The State of
Madras (3). ” The general rule in regard to a temporary
statute is “, observed Patanjali Sastri J., ” that, in the
absence of special provision to the contrary, proceedings
which are being taken against a person under it will ipso
facto terminate as soon as the statute expires”. It is true
that the Legislature can and often enough does avoid such an
anomalous consequence by enacting in the temporary statute a
saving provision, and the effect of such a saving provision
is in some respects similar to the effect of the provisions
of s. 6 of the General Clauses Act. As an illustration, we
may refer to the decision in Wicks v. Director of Public
Prosecutions (4). In that case ail offence against Defence
(General) Regulations made under the Emergency Powers
(Defence) Act, 1939, was committed during the currency of
the Act and the offender was prosecuted and convicted after
the expiry of the Act. The contention raised by the
offender that his prosecution and conviction were invalid
because, at the relevant time, the temporary
(1) [1952] S.C.R. 710, 731.
(2) Craies on ” Statute Law “, 5th Ed., P. 377.
(3) [1951] S.C.R. 621, 628.
(4) [1947] A.C. 362.
97
Act had expired was rejected in view of the provisions
of.,;. 11, sub-s. 3 of the Act. This sub-section had
provided that the expiry of the Act shall not affect the
operation thereof as respects things previously done or
omitted to be done. The House of Lords agreed with the view
expressed by the Court of Criminal Appeal and held that it
was clear that Parliament( did not intend sub-s. 3 to expire
with the rest of the Act and that its presence in the
statute is a provision which preserved the right to
prosecute after the date of its expiry. Since the impugned
Act does not contain an appropriate saving section the
appellant would be entitled to contend that, after the
expiration of the Act, the procedure laid down in it could
no longer be invoked in the cases then pending against the
appellant. We would like to add that, in the present case,
we are not called upon to consider whether offences created
by a temporary statute cease to be punishable on its
expiration.
For the respondent, Mr. Umrigar, however, contends that the
appellant is wrong in assuming that the Act in fact expired
on August 14, 1951. He has invited our attention to the
provisions of Act No. I of 1951 by which the President
extended some of the provisions of the earlier temporary Act
in exercise of the powers conferred by s. 3 of the Punjab
State Legislature (Delegation of Powers) Act, 1951 (46 of
1951), The provisions of that Act extended to the whole of
the State of Punjab and came into force on September 13,
1951. Mr. Umrigar relied on s. 16 of Act 46 of 1951 which
repealed the East Punjab Public Safety Act, 1949 (Punj. 5 of
1949) and the East Punjab Safety (Amendment) Ordinance, 1951
(5 of 1951) but provided that notwithstanding such repeal
any order made, notification or direction issued,
appointment made or action taken under the said Act and in
force immediately before the commencement of this Act shall,
in so far as it is not inconsistent therewith, continue in
force and be deemed to have been made, issued or taken under
the corresponding provisions of this Act. It must, however,
be pointed out that this
13
98
Act does not continue the material provisions of the
impugned Act such ass. 20 and s. 36 ; and so s. 16 cannot be
invoked for the purpose of validating the continuation of
the subsequent proceedings against the appellant in the
cases then pending against him.
Besides, it is necessary to recall that s. 36(1) of the Act
prescribed the application of the summons procedure in the
trial of specified offences only in dangerously disturbed
areas; and so, unless it is shown that the relevant area
could be treated as a dangerously disturbed area at the
material time, s. 36(1) would be inapplicable. In other
words, the adoption of the summons procedure would be
justified only so long as the area in question could be
validly treated ,as a dangerously disturbed area and it is
therefore pertinent to enquire whether at the relevant time
the area in question was duly and validly notified to be a
dangerously disturbed area.
We have already referred to the four notifications issued by
the competent authority. The second notification purported
to cancel with effect from October 1, 1950, the first
notification which had declared the whole of the Province of
Delhi as a dangerously disturbed area. A week thereafter,
the third notification sought to introduce an exception to
the cancellation as notified by the second notification.
Apart from the question as to whether, after the lapse of a
week, it was competent to the authority to modify the second
notification, it is difficult to understand how it was
within the jurisdiction of the notifying authority to say
that the whole of the Province of Delhi had ceased to be a
dangerously disturbed area ” except as respects things done
or omitted to be done before the date of this notification
“. Section 20 of the Act under which this notification has
been issued authorised the Provincial Government to declare
that the whole or any part of the Province was a dangerously
disturbed area. The notification could declare either the
whole or a part of the Province as a dangerously disturbed
area; but s. 20 does not empower the notifying authority to
treat any area as being dangerously disturbed in respect of
certain things and not dangerously disturbed
99
in regard to others. Authority to’ declare areas as
dangerously disturbed has no doubt been validly delegated to
the Provincial Government; but no authority has been
conferred on the delegate to treat any area as disturbed for
certain things and not disturbed for others. We have,
therefore, no doubt that in introducing the exception to the
cancellation effected by the second notification the third
notification has gone outside the authority conferred by s.
20 and is clearly invalid. If that be so, it must be held
that the whole of the Province of Delhi ceased to be a
dangerously disturbed area as from October, 1, 1950.
It was probably realised that the-third notification would
be invalid and hence the fourth notification was issued on
April 7, 1951. This purports to be a certificate issued by
the competent authority under the second part of s. 36, sub-
s. (1). This certificate seeks to achieve the same result
by declaring that though the State of Delhi was not a
dangerously disturbed area, the offences specified in the
notification would nevertheless continue to be tried
according to the summons procedure.
This notification is clearly not authorised by the powers
conferred by the second part of s. 36, sub-s. (1). What the
Provincial Government is authorised to do by the second part
of s. 36(1) is to direct that in areas other than those
which are dangerously disturbed all offences under the Act
and any other offence under any other law should be tried
according to the summons procedure. It is clear that the
notification which the Provincial Government is authorised
to issue in this behalf must relate to all offences under
the Act and any other offence under any other law. In other
words, it is the offences indicated which can be ordered to
be tried under the summons procedure by the notification
issued by the Provincial Government. The Provincial
Government is not authorised to issue a notification in
regard to the trial of any specified case or cases; and
since it is clear that the notification in question covers
only pending cases and has no reference to offences or class
of offences under the Indian Penal Code,, it is outside the
100
authority conferred by the second part of s. 36(1). It is
obvious that the third and the fourth notifications
attempted to cure the anomaly which it was apprehended would
follow in regard to pending cases in the absence of a saving
section in the Act. If through inadvertence or otherwise
the Act did not contain an appropriate saving section, the
defect could not be cured by the notifications issued either
under s. 20 or under s. 36(1) of the Act. In issuing the
said notifications the competent authority was taking upon
itself the functions of the Legislature and that clearly was
outside its authority as a delegate either under s. 20 or
under s. 36(1) of the Act.
Mr. Umrigar, then, argues that the competent authority was
entitled to modify the notification issued by it because the
power to issue a notification must also involve the power
either to cancel, vary or modify the same; and in support of
this argument Mr. Umrigar relies on the provisions of s. 19
of the Punjab General Clauses Act, 1898 (Punj. 1 of 1898)
which in substance corresponds to cl. 21 of the General
Clauses Act, 1897 (10 of 1897). In our opinion, this
argument is not well-founded. Section 19 of the Punjab
General Clauses Act, like s. 21 of the General Clauses Act,
embodies a rule of construction, the nature and extent of
the application of which must inevitably be governed by the
relevant provisions of the statute which confers the power
to issue the notification. The power to cancel the
notification can be easily conceded to the competent
authority and so also the power to modify or vary it be
likewise conceded; but the said power must inevitably be
exercised within the limits prescribed by the provision
conferring the said power. Now s. 20 empowers the
Provincial Government to declare the whole or any part of
the Province to be a dangerously disturbed area; and if a
notification is issued in respect of the whole or any part
of the Province it may be either cancelled wholly or may be
modified restricting the declaration to -a specified part of
the Province. The power to cancel or modify must be
exercised in reference to the areas of the Province which it
is competent for the Provincial
101
Government to specify as dangerously disturbed. The power
to modify cannot obviously include the power to treat the
same area as dangerously disturbed for persons accused of
crimes committed in the past and not disturbed for others
accused of the same or similar A, offences committed later.
That clearly is a legislative function which is wholly
outside the authority conferred on the delegate by s. 20 or
s. 36(1). We must, therefore, hold that the third and the
fourth notifications are invalid and as a result of the
second notification the whole of the Province of Delhi
ceased to be a dangerously disturbed area from October 1,
1950.
This position immediately raises the question about the
validity of the proceedings continued against the appellant
in the three cases pending against him under the summons
procedure. So long as the State of Delhi was validly
notified to be a dangerously disturbed area the adoption of
the summons procedure was no doubt justified and its
validity Could not be impeached; but, with the cancellation
of the relevant notification s. 36(1) of the Act ceased to
apply and it was necessary that as from the stage at which
the cases against the appellant then stood the warrant
procedure should have been adopted; and since it has not
been adopted the trial of the three cases is invalid and so
the orders of conviction and sentence imposed against him
are void. That in brief is the alternative contention
raised before us by Mr. Ram Lal Anand.
Mr. Umrigar, urges that since the trial had validly
commenced under the summons procedure, it was unnecessary to
change the procedure after October 1, 1950, and his case is
that the trial is not defective in any manner and the
challenge to the validity of the impugned orders of
conviction and sentence should not be upheld. In support of
his argument Mr.Umrigar has invited our attention to some
decisions which may now be considered. In Srinivasachari v.
The Queen (1) the accused was tried by a Court of Sessions
in December 1882 on charges some of which were triable by
assessors and others by jury. Before the trial was
concluded the Code of Criminal Procedure, 1882, came into
force
(1) [1883] I.L.R. 6 Mad. 336.
102
and under s. 269 of the Code all the said charges became
triable by jury. Section 558 of the Code had provided that
the provisions of the new Code had to be applied, as far as
may be, to all cases pending in any criminal court on
January 1, 1883. The case against the accused which was
pending on the date when the new Act came into force was
submitted to the High Court for orders; and the High Court
directed that by virtue of s. 6 of the General Clauses Act
the trial must be conducted under the rules of procedure in
force at the commencement of the trial. It is clear that
the decision of the High Court was based both on the
specific provisions of s. 558 which provided for the
application of the new Code to pending cases only as far as
may be and on the principles laid down in s. 6 of the
General Clauses Act. That is why that decision cannot
assist the respondent since s. 6 of the General Clauses Act
is inapplicable in the present case.
The decision on Mukund v. Ladu (1) is also inapplicable for
the same reasons. It was a case where one act was repealed
by another and so the question as to the applicability of
the provisions of the latter act had to be considered in the
light of the provisions of s. 6 of the General Clauses Act.
The judgment in terms does not refer to s. 6 but the
decision is obviously based on the principles of the said
section.
Then Mr.Umrigar relied on Gardner v. Lucas (2). In that
case s. 39 of the Conveyancing (Scotland) Act, 1874, with
which the court was dealing affected not only the procedure
but also substantive rights; and so it was held that the
said section was not retrospective in operation. This
decision is wholly inapplicable and cannot give us any
assistance in the present case.
Mr. Umrigar also placed strong reliance on a decision of the
Full Bench of the Punjab High Court in Ram Singh v. The
Crown (3). That decision does lend support to Mr. Umrigar’s
contention that the continuation of the trial under the
summons procedure did not introduce any infirmity and was in
fact appropriate
(1) [1901] 3 Bom. L.R. 584. (2) [1878] 3 A.C. 582.
(3) A.I.R. 1950 East Punjab 25.
103
and regular. The case against Ram Singh had been sent to
the Court of Session under the provisions of s. 37 (1) of
the Punjab Public Safety Act, 1948 (Punj. 2 of 1948) at a
time when Luahiana District was declared to be a dangerously
disturbed area; before, however, the trial in the Court of
Session actually commenced the District ceased to be a’
dangerously disturbed area. Even so, it was held that the
Sessions Judge should continue with the trial under the
provisions of s. 37 (1) of the Act and not under the
ordinary provisions of the Code regarding sessions trial,
and should follow the procedure prescribed for the trial of
summons cases. It appears that the judgment in the case
proceeded on the assumption that the principles enacted by
s. 6 of the General Clauses Act were applicable, and so,
since at the commencement of the proceedings the adoption of
the summons procedure was justified under s. 37 (1) of the
Act, the trial could continue under the same procedure even
after the area had ceased to be a dangerously disturbed
area. In our opinion, it is erroneous to apply by analogy
the provisions of s. 6 of the General Clauses Act to cases
governed by the provisions of a temporary Act when the said
Act does not contain the appropriate saving section.
Failure to recognise the difference between cases to which
s. 6 of the General Clauses Act applies and those which are
governed by the provisions of a temporary Act which does not
contain the appropriate saving section has introduced an
infirmity in the reasoning adopted in the judgment.
Besides, the learned judges, with respect, were in error in
holding that the application of the ordinary criminal
procedure was inadmissible or impossible after the area
ceased to be dangerously disturbed. No doubt the learned
judges recognised the fact that ordinarily the procedural
law is retrospective in operation, but they thought that
there were some good reasons against applying the ordinary
procedural law to the case, and that is what influenced them
in coming to the conclusion that the summons procedure had
to be continued even after the area ceased to be dangerously
disturbed. In this connection the learned
104
judges referred to the observation in Maxwell that ” the
general principle, however, seems to be that alterations in
procedure are retrospective, unless there be some good
reason against it (1) ; and they also relied on the decision
of the Privy Council in Delhi Cloth and General Mills Co.,
Ltd. v. Income-tax Commissioner, Delhi (2) in which their
Lordships have referred with approval to their earlier
statement of the law in the Colonial Sugar Refining Co. v.
Irving (3) that ” while provisions of a statute dealing
merely with matters of procedure may properly, unless that
construction be textually inadmissible, have retrospective
effect attributed to them”. The learned judges took the
view that these principles justified their conclusion that
“where the provisions of a statute dealing with matters of
procedure are inapplicable to a certain proceeding pending
at the time the statute came into force, they must be
regarded as textually inadmissible so far as those
proceedings are concerned “. We are disposed to think that
this view is not sound. We do not think that the adoption
of the ordinary warrant procedure was either inadmissible or
inapplicable at the stage where the trial stood in the case
against Ram Singh (4). It was wrong to assume that the ses-
sions procedure would be inapplicable for the reason that
the provisions of the Code in regard to the commitment of
the case to the Court of Session had not been complied with.
With respect, the learned judges failed to consider the fact
that the procedure adopted in sending the case to the Court
of Session under s. 37(1) of the relevant Act was valid and
the only question which they had to decide was what
procedure should be adopted after Ludhiana ceased to be a
dangerously disturbed area. Besides, it was really not a
case of retrospective operation of the procedural law; it
was in fact a case where the ordinary procedure which had
become inapplicable by the provisions of the temporary
statute became applicable as soon as the area in question
ceased to be dangerously disturbed.
(1) Maxwell on ” Interpretation of Statutes “, 9th Ed.,P.
226.
(2) [1927] 9 Lah. 284. (3) [1905] A.C. 369.
(4) A.I.R. (1950) East Punjab 25.
105
In this connection it is relevant to refer to the decision
of this Court in Syed Qasim Razvi v. The State of Hyderabad
(1). In that case this Court was dealing with the
regulation called the Special Tribunal Regulation (V of 1358
Fasli) which had been promulgated by the Military Governor
of the Hyderabad State. The said regulation had provided
that the( Military Governor may, by general or special
order, direct that any offence or class of offences should
be tried by such tribunal, and the procedure for trial laid
down by it differed from the provisions of the Hyderabad
Criminal Procedure Code in several material particulars.
The cases against the accused were directed to be tried by
the Special Tribunal on October 6, 1949. The accused were
convicted in September 1950 and their conviction on some of
the charges was upheld by the High Court in appeal in April,
1951. The accused then appealed to this Court and also
applied under Art. 32 of the Constitution for quashing the
orders of conviction and sentence on the ground that the
Special Tribunal Regulation became void on January 26, 1950,
as its provisions contravened Arts. 14 and 21 of the
Constitution which came into force on that date, and the
continuation of the trial and conviction of the accused
after that date was illegal. It is true that the final
decision in the case, according to the majority view,
proceeded on the footing that the accused had substantially
the benefit of a normal trial though there were deviations
in certain particulars and so his conviction could not be
set aside merely because the Constitution of India came into
force before the termination of the trial. As we will
presently point out, the relevant facts in this case in
regard to the deviation from the normal procedure are
different from those in Syed Qasim Razvi’s case (1), but
that is another matter. What is important for our purpose
is the view expressed by this Court that the regulation
issued by the Military Governor of Hyderabad State could not
be impeached and so the Special Tribunal must be deemed to
have taken cognisance of
(1) [1953] S.C.R. 589.
14
106
the case quite properly and its proceedings up to the date
of the coming in of the Constitution would also have to be
regarded as valid. Dealing with this point, Mukherjea, J.,
who delivered the judgment of the Court, quoted with
approval the observations made in Lachmandas Kewalram Ahuja
v. The State of Bombay(1) that ,as the Act was valid in its
entirety before the date of the Constitution, that part of
the proceedings before the Special Judge, which, up to that
date had been regulated by the special procedure cannot be
questioned “. Unfortunately this aspect of the matter was
not properly placed before the Full Bench of the Punjab High
Court in the case of Ram Singh (2). If the learned judges
had proceeded to deal with the question referred to them on
the basis that the initial submission of the case to the
Court of Session under s. 37(1) of the Act was valid they
would not have come to the conclusion that the sessions
procedure was inadmissible or inapplicable to the
continuation of the case after Ludhiana had ceased to be a
dangerously disturbed area. That is why we think that the
view taken by the Full Bench is erroneous.
The position then is that as from October 1, 1950, the three
cases against the appellant should have been tried according
to the warrant procedure. It is clear that, at the stage
where the trial stood on the material date, the whole of the
prosecution evidence had not been led and so there was no
difficulty in framing charges against the appellant in the
respective cases and thereafter continuing the trial accord-
ing to the warrant procedure. Having regard to the nature
of the charges framed and the character and volume of
evidence led, it is difficult to resist the appellant’s
argument that the failure to frame charges has- led to
prejudice; and it is not at all easy to accept the
respondent’s contention that the double opportunity to
cross-examine the prosecution witnesses which is available
to an accused person under the warrant procedure is not a
matter of substantive and valuable benefit to him. The
denial of this opportunity must,
(1) [1952] S.C.R. 710, 731,
(2) A.I.R. 1950 East Punjab 25.
107
in the circumstances of the present cases, be held to have
caused prejudice to him. We must accordingly hold that the
continuation of the trial of the three cases against the
appellant according to the summons procedure subsequent to
October 1, 1950, has vitiated the trial and has rendered the
final orders of conviction and sentence invalid. We must
accordingly set aside the orders of conviction and sentence
passed against the appellant in all the three cases.
That takes us to the question as to the final order which
should be passed in the present appeals. The offences with
which the appellant stands charged are of a very serious,
nature; and though it is true that he has had to undergo the
ordeal of a trial and has suffered rigorous imprisonment for
some time that would not justify his prayer that we should
not order his retrial. In our opinion, having regard to the
gravity of the offences charged against the appellant, the
ends of justice require that we should direct that he should
be tried for the said offences de novo according to law. We
also direct that the proceedings to be taken against the
appellant hereafter should be commenced without delay and
should be disposed of as expeditiously as possible.
Appeal allowed.
Retrial ordered.