TaxTMI 
TaxTMI 
1953 (5) TMI 12
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....Diamond Mining Syndicate on the other part, the latter obtained a lease for carrying out diamond-mining operations for a period of 15 years. It appears that on or about the 31st October, 1947, the Panna Durbar directed the stoppage of the mining work on the ground that the Syndicate was not carrying on the operations properly. Since then the Syndicate was making strenuous efforts to obtain cancellation of the said order. It is alleged that the two appellants in the course of these attempts, with which, at the material time, they were concerned in their official capacity, entered into a conspiracy about the beginning of February 1949 at Rewa (within the United State of Vindhya Pradesh), to obtain illegal gratification for the purpose of revoking the previous order of stoppage of mining work In pursuance of the said conspiracy it is alleged that the second appellant demanded on 8th March, 1949, at Rewa illegal gratification from one Nagindas Mehta, a representative of the Panna Diamond Mining Syndicate, and that later on 11th April, 1949, the first appellant, in fact, received a sum of Rs. 25,000 towards it at the Constitution House in New Delhi and forged certain documents purportin....
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....ified in the Schedule to the Ordinance. Sections 5(1), 7 and 8 provide certain departures from the normal procedure or evidence, and section 9 provides for special punishment. Section 5, sub-section (2) provides as follows :- "Save as provided in sub-section (1) the provisions of the Code of Criminal Procedure, as adapted in Vindhya Pradesh, shall, so far as they are not inconsistent with this Ordinance, apply to the proceedings of a Special Court, and for the purposes of the said provisions, the Court of the Special Judge shall be deemed to be a Court of Session trying cases without a Jury or without the aid of Assessors, and a person conducting a prosecution before a Special Judge shall be deemed to be a Public Prosecutor." Section 6 provides as follows :- "The High Court may, subject to the provisions of section 7 regarding transfer of cases, exercise, so far as they may be applicable, all the powers conferred by Chapters XXXI and XXXII of the Code of Criminal Procedure, as adapted in Vindhya Pradesh, on a High Court as if the Court of the Special Judge were a Court ....
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....ted construction on this subsection. The only limitation on the application of the provisions of the Criminal Procedure Code to the proceedings of the Special Court is the one arising from the existence of any inconsistent provisions in the, Ordinance and not with reference to' the conduct of the proceedings before that very court. Once the Special Court is to be deemed a Court of Session the normal right of appeal provided by section 410 or section 417 as the case may be, must be taken to have been expressly provided by reference and not as arising by mere implication. Learned counsel strongly relied on Attorney-General v. Herman James Sillem (10 H. L. Cas. 704; xi E. R. 1200) to show that a provision such as the above was meant only to regulate the proceedings in a case within the four walls or limits of the court. The statutory provision which came up for construction in that case was however very differently worded, and was meant to regulate "the process, practice, and mode of pleadings," i.e., the procedure. in the court and not "the proceeding" of the court. While, no doubt, it is not permissible to supply a clear and obvious lacuna in a statute and imply a right of appeal, ....
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.... extended to Vindhya Pradesh, and one of the Acts specified in that Schedule was the entire Code of Criminal Procedure. This therefore had the effect of reviving section 268, Criminal Procedure Code, in its application to Vindhya Pradesh, repealing by section 4 of the Act the pre-existing law in this behalf in the State. It was accordingly argued that to the extent the trial continued under the old procedure subsequent to 16th April, 1950, there were inevitable discrimination and necessary prejudice. This argument, however, overlooks the fact that the repealing section 4 of Act No. XXX of 1950 contained a saving clause providing that "the repeal shall not affect (a) the previous operation of any such law, or (b) any penalty, forfeiture or punishment incurred in respect of any offence committed against any such law, or (c) any investigation, legal proceeding or remedy in respect of any such penalty, for feiture or punishment, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if this Act had not been passed." It is to be noticed that the saving provision applies equally to....
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....on of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence." This article in its broad import has been enacted to prohibit convictions and sentences under expost facto laws. The principle underlying such prohibition has been very elaborately discussed and pointed out in the very learned judgment of Justice Willes in the well known case of Phillips v. Eyre ((1870) 6 Q.B.D. i, at 23,and 25) and also by the Supreme Court of V. S. A. in calder v. Bull (3 Dallas 386; I Law. Edition 648 at 649). In the English case it is explained that ex post facto laws are laws which voided and punished what had been lawful when done. There can be no doubt as to the paramount importance of the principle that such ex Post facto laws, which retrospectively create offences and punish them are bad as being highly inequitable and unjust. In the English system of jurisprudence repugnance of such laws to universal notions of fairness and justice is treated as a ground not for invalidating the law itself but as compelling a beneficent construction thereof where the language of the statu....
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....riod. In The Queen v. St. Mary Whitechapel (116 E.R. 811 at 814) Lord, Denman C.J. pointed out that a statute which in its direct operation is prospective cannot properly be called a retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing. The lgeneral principle therefore that the fundamental rights have no retrospective operation is not in any way affected by giving the fullest effect to the wording of article 20. This article must accordingly be taken to prohibit all convictions or subjections to penalty after the Constitution in respect of ex post facto laws whether the same was a post-Constitution law or apre Constitution law. That such is the intended of the wording used in article 20(1) is confirmed by the similar wording used in articles 20 (2) and 20 (3). Under article 20 (2) for instance, it cannot be reasonably urged that the prohibition of double jeopardy applies only when both the occasions there for arise after the Constitution. Similarly. under article 20 (3) it cannot be suggested that a person accused before the Constitution can be compelled to be a witness against himself, if after the Constitution the ca....
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....le 20 must be understood in its natural sense as being the law in fact in existence and in operation at the time of the commission of the offence as distinct from the law "deemed" to have become operative by virtue of the power of legislature to pass retrospective laws. It follows that if the appellants are able to substantiate their contention that the acts charged as offences in this case have become such only by virtue, of Ordinance No. XLVIII of 1949 which has admittedly been passed subsequent to the commission thereof, then they would be entitled to the benefit of article 20 of the Constitution and to have their convictions set ,aside. This leads to an examination of the relevant pre-existing law. But before taking up that examination, it is convenient to deal with a contention which has been repeatedly pressed on us, viz., that the validity of the convictions in this case cannot be upheld on a consideration of the pre-existing state of law, because (1) the charges are specifically with reference to the offences under Ordinance No. XLVIII of 1949, and (2) the said Ordinance itself has repealed the preexisting law. This contention is, however, without any substance. An examina....
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.... period of no penal law in this territory for judging the constitutionality of any conviction subsequent to 11th September, 1949, for an alleged offence committed during that period. This argument is self-contradictory, and proceeds on misconception. What is relevant for the application of article 20 is not the result brought about by repeal and the retrospective operation thereof, but the factual state of law as it existed prior to the date when the repeal came into operation. The repeal itself posits the pre-existence of the law, and it is that law which is relevant for our present purpose. It therefore becomes necessary to examine in some detail what was the criminal law factually in force during the months of February, March and April, 1949, when the acts charged as offences against the appellants were committed, and to see whether it wag anything different from what was enacted by Ordinance No. XLVIII of 1949. Since the valid existence of such law has been, in the course of the arguments, contended as depending on the administrative setup at the relevant period and the legislative authority functioning in that set-up, it becomes necessary to have a ,correct appreciation of th....
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.... of Vindhya Pradesh on the 20th of July, 1948, and was accepted by the Governor-General of India on the 13th of September, 1949. It may be incidentally mentioned that one of the important differences between the previous individual Instruments of Accession executed by the various rulers and the later Instrument of Accession executed by the Rajpramukh is that while under the former, accession was only in respect of three matters, viz., Defence, External Affairs and Communications, under the later Instrument dated the 20th of July, 1948, all matters enumerated in Lists Nos. I and III of the Seventh Schedule of the Government of India Act, 1935, were accepted as the matters in respect of which the legislature of India, then called the Dominion Legislature, might make laws for the United State of Vindhya Pradesh. It may also be mentioned that on the 25th November, 1949, the Rajpramukh of the United State of Vindhya Pradesh issued a proclamation whereby he declared that the Constitution of India which was then shortly to be adopted by the Constituent Assembly of India shall be the Constitution for the Vindhya Pradesh as for the other parts of India and specifically superseded and abroga....
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....ded that nothing in this clause shall apply to any local law, rules, regulation or custom having the force of law, which relates to matters connected with land revenue or tenancy." This Ordinance extended to the whole of Vindhya, Pradesh, and was to come into force with effect from the 9th of August, 1948, by virtue of section I thereof. The Ordinance was amended later by another Ordinance No. XX of 1949 which deleted from section 2 of the previous Ordinance the words "by publication in the Rewa Raj Gazette". The effect of these two Ordinances, so far as we are concerned, was to extend' to the entire State of Vindhya Pradesh the criminal law which was in force previously in the Rewa State. That law is to be found by reference to Orders Nos. IV of 1921 and VI of 1922 issued by the then Regent of Rewa acting for the Maharajah on the 18th February, 1921, and 9th March, 1922, respectively. A perusal of these two Orders and in particular of paragraph 10 of the 1921 Order as interpreted by the 1922 Order makes it perfectly clear "that the Indian Penal Code and the Code of Criminal Procedure were introduced in the Rewa State, in the letter and in the spirit with due adaptation to local c....
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....laws which have been enumerated in the above-mentioned Gazette as having been brought into force in Vindhya Pradesh (some of these are Acts prior to 1930) there must have been previous publication in the Rewa Gazette sometime after 1930, and that neither Ordinance No. XX of 1949 nor the decision of Vindhya Pradesh High Court relating to Prisoners' Act (which is not one enumerated in the above Gazette) can be taken to negative it. We are prima facie inclined to accept this view and to think that the Indian Penal Code as in force in Rewa became extended to Vindhya Pradesh by Ordinance No. IV of 1948. But even assuming that section 2 of the Ordinance failed to achieve its purpose on account of misconception as to the previous publication of any particular Rewa law in the Rewa Gazette, it is clear that that Rewa law would continue to be in force in the Rewa portion of the United State of Vindhya Pradesh, as the Vindhya Pradesh law therefor, on the principle recognised in Mayor of Lyons v. East India Company (1), that on change of sovereignty over an inhabited territory the pre-existing laws continue to be in force until duly altered. Since in the present case we are concerned with offe....
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....sume importance since the charges against the first appellant, who is a Minister, is in his capacity as a public servant and since also one of the charges against him is in respect of acts done in New Delhi-completely outside Vindhya Pradesh. It is true that Ordinance No. XLVIII of 1949 amended the Indian Penal Code by substituting for the previous first clause of section 21 thereof relating to the definition of a "public servant" the phrase "Every Minister of State". But it does not follow that " a Minister of State" was not a public servant as defined in section 21 of the Indian Penal Code even before this amendment. Clause 9 of section 21, Indian Penal Code, shows that every officer in the service or pay of the Crown for the performance of any public duty is a "public servant". The decision of the Privy Council in King-Emperor v. Sibnath Banerji ([1945] F. C. R. 1915 at 222) is decisive to show that a Minister under the Government of India Act is "an officer" subordinate to the Governor. On the same reasoning there can be no doubt that the Minister of Vindhya Pradesh would be an "officer" of the State of Vindhya Pradesh. Therefore, prior to the passing of Ordinance No. XLVIII o....
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....ales ([1891] A.C. 455)]. In the, present case we are concerned only with that portion of the relevant extra-territorial law which renders an act committed by a subject of the State outside the limits of the State an offence triable by the courts of state. In the course of the arguments it has suggested that to that limited extent no question territoriality of the relevant legislation arises. concept of extra-territorial legislation appears to comprehend such cases also, if the passages relied on before us from Pitt-Cobbet's International Law, 5th Edition, at page 216 as also at pages 225 and 226paragraphs 101 and 102, are to be accepted as correct. Assuming without deciding that this is so, the argument has been advanced that no ruler of the Indian States, before the 15th August, 1947, and much less the Rajpramukh of Vindhya Pradesh, had any such full sovereign status as to entitle them to pass extraterritorial laws. It is well-known that these rulers had no external sovereignty, as it was taken out of them and exercised by the suzerain British power. But for internal purposes or municipal purposes the rulers were generally considered as having full sovereign status except to the e....
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....s 351 and 352. The following extract from paragraph 143 at page 351 is instructive : "But where, as in the case of European British subjects, material distinctions in religion, education, and social habits separate them from the native community, and justify the extension to them of those rights of ex-territoriality, which are still obtained for them by Capitulations and agreements with foreign non-Christian nations, these distinctions are absent in the case of native Indian subjects of Her Majesty. The systems of native justice, if not similar to those in British territory, are more or less assimilated, and provided that the trial of native Indian subjects by the ordinary tribunals of the States, whose laws they have offended, is supervised by the British agent, the general rule is to leave to the Native States jurisdiction over such British subjects who break their laws, even where the offence committed is also cognisable under the law of India. The British Government goes still farther, since it extradites to the Native State a native Indian subject, who, after the commission of an extraditable offence in the Native principality, seeks shelter in British territory, provided that....
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....mitted by their own subjects and vesting in their own courts the power to try them, except where the contrary is made out by evidence in the case of any individual State, and that so far at least as Rewa State is concerned, the contrary cannot be held to have been proved. The further point that has been raised is that whatever may be the position of the Rewa State before 1947 the attempt of the Rajpramukh of the State of Vindhya Pradesh in so far as he purported to extend the extra-territorial portion of any of the Rewa laws to Vindhya Pradesh by Ordinances Nos. IV of 1948 and XX of 1949 and his attempt to introduce into Vindhya Pradesh the extra-territorial portion of the Indian Penal Code and the Criminal Procedure Code by Ordinances Nos. XLVIIII of 1949 and XXVIII of 1949 respectively, must fail as he had no such authority for extra-territorial legislation with reference to the basic covenants from which his authority was derived. These basic covenants are as already above shown the inter se integration agreement dated 18th March, 1948, executed by all the rulers of the component States of Vindhya Pradesh and the Instrument of Accession dated 20th July, 1948, executed by the Ra....
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....ral Legislature to make laws for his State, and the exercise of the executive authority of the Federation in his State, are respectively to be subject." Section 101 of the Government of India Act in terms says that, "Nothing in the Act shall be construed as empowering the Federal Legislature to make laws for a Federated State otherwise than in accordance with the Instrument of Accession of that State and any limitation contained therein." If the argument put forward by the appellants' counsel is correct, viz., that the mere reference to the legislative items in respect of which the Dominion Legislature could make laws applicable to the State of Vindhya Pradesh as Lists I and III carried with it the necessary implication that the Dominion Legislature alone had the power to make laws for the State with extra-territorial operation, and to that extent therefore curtailed the legislative authority of the Rajpramukh, it would be tantamount to the importation of all the limitations under sections 99 to 104 into the Instrument of Accession. This would be contrary to section 101 of the Government of India Act. There is no justification for such a view merely because of the reference to th....
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....round that it is a conviction under an ex post facto law. As regards the amendments in the Criminal Procedure Code brought about by Ordinances Nos. XV of 1948 dated the 31st December, 1948, and XXVII of 1949 dated the 3rd May, 1949, no detailed consideration is necessary in view of what has been held at the outset that the constitutional objection under article 20 does not apply to a change in procedure or change of court. Items 62 and 63 of section 2 of Ordinance No' XV of 1948 would seem to indicate that the jurisdiction which the criminal courts of Vindhya Pradesh previously had to try extra-territorial offences was probably lost thereby. If so, that jurisdiction,"as restored under Ordinance XXVII of 1949 by the amendment thereby of the said items 62 and 63 thus bringing it into line with section 188, Criminal Procedure Code, with the requisite adaptations. Hence the power of the Vindhya Pradesh courts to hold trials for extra-territorial offences which was probably interrupted from 31st December, 1948, was restored on 3rd May, 1949, before the trial in this case commenced with retrospective operation, i.e., as from the date of the prior Ordinance, i.e., 31st December, 1948. I....