ORDER
Das, J.
1. This is an application under Article 228 of the Constitution of India, for the withdrawal of criminal appeal (No. 44 of 1954) pending before the second Additional Sessions Judge of Patna. The application has been made on behalf of the State of Bihar.
2. The short facts relevant to the application are the following.
The opposite-party is Mr. A. P. A, Hamid, retired Inspector General of Police, Patna. On a report of the Inspector of Mica Mines, Kodarma, the opposite party was prosecuted for breaches of Section 17 (1)(a) & 17(4), Bihar Mica Act, 1947. He was tried by Mr. J. P. Sinha, Munsif Magistrate of Bihar, who convicted the opposite party on 16th January 1954 and sentenced him to a fine of Rs. 100/- only under Section 17(1) (a) and passed no separate sentence under Section 17(4) of the said Act. The opposite party preferred an appeal to the learned Sessions Judge of Patna which is now pending before the second Additional Sessions Judge.
It is stated that in the said appeal the validity of the Bihar Mica Act, 1947, as amended from time to time, has been questioned on two grounds. The first ground is the following. The Bihar Mica Act, 1947, as originally passed, received the assent of the Governor General on 30th January 1948, which assent was published in the Bihar Gazette Extraordinary on 4th March, 1948. Sub-section (2) of Section 1, Bihar Mica Act, 1947, stated, inter alia, that “it shall remain in force for a period of one year”. On 3rd March, 1949, the day on which the Act was to expire, an amending Act was passed toy which the words “shall remain in force for a period of one year” were deleted. This amending Act was assented to by the Governor, but not by the Governor General. The contention is that the amending Act was invalid for want of assent by the Governor General.
The second contention is that the Bihar Mica Act, 1947, as amended from time to time, was ultra vires the Bihar Legislature. This contention has been put before me in the following way. Item 23 of the Provincial Legislative List in Sch. 7, Government of India Act, 1935 related to
Regulation of mines and oilfields and mineral development subject to the provisions of List I with respect to regulation and development under Dominion control.
Items 34 and 38 of List I of the Seventh Schedule related to
Development of industries where development under Dominion control is declared by Dominion law to be expedient in the public interest” and “Regulation of mines and oilfields and mineral development to the extent to which such regulation and development under Dominion control is declared by Dominion law to be expedient in the public interest.
On 8th September, 1948, the Governor-General gave his assent to a Central Act called the Mines and Minerals (Regulation and Development) Act, 1948 (Act 53 of 1948). The amending Act of 3rd March, 1949, by which the Bihar Mica, Act, 1947, Was amended was passed after the coming into force of the Central Act called the Mines and Minerals (Regulation and Development) Act, 1948. The contention is that in so far as the Central Act regulated mines and mineral development under item 38 of List I, the Provincial Legislature ceased to have any power to legislate under item 23 of List II; even if they had power to legislate, that power was subject to the Central Act with respect to regulation of mines and mineral development.
3. The contentions referred to above have been explained to me by the learned Government Advocate though he has made it quite clear that the contentions are, in his opinion, incorrect.
The stand which the learned Government Advocate has taken is that the appeal pending before the learned second Additional sessions Judge involves a substantial question of law as to the interpretation of the Government of India Act. 1935, though the contentions raised on behalf of the opposite party with regard to the constitutional validity of the Bihar Mica Act, 1947, are, to the opinion of the learned Government Advocate, incorrect.
It is somewhat of a paradox in this case that the contentions which are really raised by the opposite party are being placed by the learned Government Advocate, while learned Counsel for the opposite party is opposing the application under Article 228 of the Constitution, on the ground that the determination of the constitutional questions may not be necessary for the disposal of the appeal.
4. Article 228 of the Constitution refers to the interpretation of the Constitution. Article 147 makes it quite clear that any substantial question of law as to the interpretation of the Government of India Act, 1935, is also covered by Article 228 of the Constitution.
Three conditions must be fulfilled before Article 228 of the Constitution can apply; the first condition is that there must be a case pending in the Court subordinate to the High Court; secondly the case must involve a substantial question of law as to the interpretation of the Constitution or the Government of India Act, 1935, as in this case; thirdly, the determination of the question of law must be necessary for the disposal of the case. Once these three conditions are fulfilled, the Article requires that the High Court shall withdraw the case, and then may either dispose of the case itself or determine the question of law and return the case to the Court from which the case has been withdrawn etc. So far as withdrawal of the case is concerned, the Article is mandatory as soon as the conditions laid down therein are fulfilled.
5. Therefore, the question in this case is if the conditions laid down in Article 228 of the Constitution are fulfilled or not?
The first condition is undoubtedly fulfilled. There is a case pending before the second Additional Sessions Judge of Patna, which is a court subordinate to the High Court.
As to the second condition, it is not necessary nor desirable at this stage, to give a final decision on the constitutional questions raised, and I must not be understood to have given any such decision. All that is necessary at this stage is to determine whether the case involves a substantial question of law as to the interpretation of the Government of India Act, 1935, within the meaning of Article 228 read with Article 147 of the Constitution of India. Personally, I do not think that the question of assent by the Governor General to the Amending Act of 3rd March, 1949, really arises in the case. Section 107, Government of India Act, 1935, which talked of the assent of the Governer General, related to an inconsistency between Dominion law and Provincial law in the Concurrent field. It is not contended before me that the Bihar Mica Act, 1947, was legislation in respect of any item of the Concurrent Legislative List in Sch. 7, Government of India Act, 1935. I do not, therefore, see how any question of assent by the Governer General really arises in the case.
The other point namely, that the Bihar Mica Act, 1947, as amended from time to time, was legislation which encroached into a forbidden field and related to certain items of List I that is the Dominion Legislative List, is, I think, a substantial question of law as to the interpretation of the Government of India Act, 1935. I am merely saying that it is a substantial question but I am not saying whether the contention is correct or not; nor if there is any conflict between the Bihar Mica Act, 1947 and Act 53 of 1948. Therefore, the second condition of Article 228 may be said to have been fulfilled.
6. The main dispute before me has been about the 3rd condition of Article 228 of the Constitution. Mr. Amin Ahmad, appearing for the opposite party, has contended that his client does not rest his case only on the point of constitutional invalidity of the Bihar Mica Act, 1947, as amended from time to time, his client also urges the point that the provisions of the Bihar Mica Act, 1947, even if the Act is constitutionally valid and was in force at the relevant time, do not affect him at all, in other words, he is not hit by the provisions of the Bihar Mica Act, 1947 as amended from time to time. Therefore, Mr. Amin Ahmad says that if on facts this view is upheld, it would be quite unnecessary to pronounce on the constitutional validity of the Bihar Mica Act, 1947, as amended from time to time.
Mr. Amin Ahmad has placed great reliance on the decision in – ‘Ramaswami Ambalam v. Madras Hindu Religious Endownment Board’ , where Panchapakesa Ayyar, J. made the following observations with regard to the third condition of Article 228 of the Constitution:
The High Court must be satisfied that the determination of that question is necessary for the disposal of the case. If the suit can be disposed of on the other questions raised (like limitation, non-maintainability by a single person when a representative suit has to be filed under the law, etc.), Article 228 will not apply. Usually, the High Court will not act till this point is clear and will wait for the other issues to be decided.
The learned Government Advocate, on the contrary, has contended that an application under Article 228 of the Constitution must be made before the case is actually decided, and it may not be possible to wait in all cases till a decision is given on facts.
He has further argued that when two or three issues arise for decision and a finding on any of them may be decisive of the case, each of the issues must be held to be necessary for the disposal of the case. It is, however, well settled that no Court shall pronounce on the constitutional validity of an Act passed by a Legislature unless it is necessary for the disposal of the case. The position in the case under my consideration is this : It is still uncertain if it is really necessary to decide the question as to the constitutional validity of the Bihar Mica Act, 1947, as amended from time to time. If the Additional Sessions Judge is able to decide the case on facts, it will be unnecessary for him to go into the question of constitutional validity of the Bihar Mica Act, 1947, as amended from time to time.
7. There is another aspect of the matter. Section 432, Criminal P. C. which was recently enacted lays down, inter alia, that where any court is satisfied that the case pending before it involves a question as to the validity of any Act, the determination of which is necessary for the disposal of the case, and is of opinion that such Act is invalid or inoperative but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the decision of the High Court.
Mr. Amin Ahmad has contended that if the learned Additional Sessions Judge decides against his client on facts, & is further of opinion that the Bihar Mica Act, 1947, as amended from time to time or any provision thereof, is for any reason invalid or inoperative, he will have to state a case to the High Court, and the High Court will then decide the question. In this view also, Mr. Amin Ahmad argues, it is unnecessary to withdraw the case to the High Court at this stage.
I am aware that Article 228 of the Constitution and Section 432, Criminal P. C. do hot cover the same ground, and it cannot be said that Section 432, Criminal P. C. controls Article 228 of the Constitution. In one sense Section 432, Criminal P. C., is wider in its effect, and in another sense it is narrower than Article 228 of the Constitution. Article 228 of the Constitution relates to a case which involves a substantial question of law as to the interpretation of the Constitution the determination of which is necessary for the disposal of the case. Section 432, Criminal P. C., relates to the validity of any Act, Ordinance, Regulation etc. and is not confined merely to an interpretation of the Constitution or of the Government of India Act, 1935. Article 228 applies as soon as the case involves a substantial question of law as to the interpretation of the Constitution, the determination of which is necessary for the disposal of the case. Section 432, Criminal P. C., applies when not merely there is a question as to the validity of any Act, Ordinance, Regulation, etc., the determination of which is necessary for the disposal of the case, but when the Court is of opinion that such Act, Ordinance, Regulation, etc., is invalid or inoperative, but has not been so declared by the High Court or by the Supreme Court. Therefore, the scope and effect of Section 432, Criminal P. C., and Article 228 of the Constitution are not the same; they do not coyer the same ground, and one does not necessarily control the other.
Though I am aware of the difference in scope of the two provisions, it seems to me that for the purpose of the present application under Article 228 of the Constitution, Section 432, Criminal P. C., has some relevancy. The relevancy arises in this way. I do not yet know if the constitutional question as to the validity of the Bihar Mica Act, 1947, is really necessary for the disposal of the case; therefore, the third ‘ condition of Article 228 of the Constitution is not fulfilled. If, however, the constitutional question does arise in the case and the Court is of opinion that the Bihar Mica Act, 1947, as amended from time to time, or any provision thereof, is invalid or inoperative, Section 432, Criminal P. C., makes it obligatory on the Court to make a reference to the High Court. In these circumstances, I do not think that I am obliged, at this stage, to withdraw the case from the Court of the 2nd Additional Sessions Judge of Patna.
8. For the reasons given above, I would dismiss the application, and decline to withdraw the case at this stage from the Court of the Second Additional Sessions Judge. I must make it clear that if at any subsequent stage it appears to this Court that the determination of the Constitutional question is really necessary for the disposal of the case, this Court will undoubtedly withdraw the case unless the Additional Sessions Judge himself considers it necessary to make a reference to this Court under the provisions of Section 432, Criminal P. C.