TMI Blog1953 (5) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... Vindhya Pradesh and those committed outside it ; (4) The law relating to the offence committed by the first appellant outside the State of Vindhya Pradesh (at New Delhi) was perfectly within the competence of the appropriate legislative authority at the relevant time; and (5) Consequent on 3 and 4 above, the objection to the convictions and sentences of the appellants ,under article 20 is not sustainable. - Criminal Appeal No. 7 of 1951 - - - Dated:- 22-5-1953 - SASTRI, M. PATANJALI (CJ), MUKHERJEA, B.K., BOSE, VIVIAN, HASAN, GHULAM AND JAGANNADHADAS, B., JJ. For the Appellant : G. S. Pathak, K. B. Asthana, For the Respondent : M. C. Setalvad, Attorney-General for India, G. N., Joshi JUDGMENT JAGANNADHA DAS, J. This is an appeal against the judgment of the Judicial Commissioner of Vindhya Pradesh dated 10 th March, 1951, by leave granted under article 134(1) (c) of the Constitution. The first and the second appellant, % were at the material period of time respectively the Minister for Industries and the Secretary to the Government, Commerce and Industries Department of the then United State of Vindhya Pradesh. The case for the prosecution against them is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntenced to rigorous imprisonment for three years and to a fine of Rs. 2,000 under section 120-B and to rigorous imprisonment for three years under section 161, Indian Penal Code, the two sentences to run concurrently. In respect of his conviction under sections 465 and 466 no separate sentence was awarded. The second appellant was sentenced to one year's rigorous imprisonment and a fine of Rs. 1,000 under section 120-B, but under section 161 no separate sentence was awarded. The validity of the convictions and sentences has been challenged on the ground that there has been infringement of articles 14 and 20 of the Constitution. In addition, a further point has been raised before us by leave that no appeal lay to the Judicial Commissioner from the acquittal by the special Judge. It is convenient to deal with this point in the first instance. The question raised depends oil a construction of the provisions of the Vindhya Pradesh Criminal Law Amendment (Special Court) Ordinance No. V of 1949 dated 2nd December, 1949. By section 2 thereof the Vindhya Pradesh Government was given the power by notification to constitute Special Courts of criminal jurisdiction within the State and by se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onferring a right of appeal to the aggrieved party, whether an accused or the State, against the judgment of the Special Judge. The section, in terms, says that the provisions of the Code of Criminal Procedure as adapted and in so far as they are not inconsistent with the Ordinance shall apply to the proceedings of a Special Court, and that for the purposes of the said provisions (that is, the adapted provisions which are not inconsistent and hence apply) the court of a Special Judge is to be deemed a Court of Session. The provisions of the Criminal Procedure Code relating to the right of appeal are sections 410 and 417, and there is nothing in the Vindhya Pradesh Ordinance which is inconsistent with the application of these two sections to the proceedings of a Special Court treated as a Court of Session for the purpose. It follows that the said proceedings are subject to appeal. But it is urged that the provisions of the Criminal Procedure Code that are attracted by sub-section (2) of section 5 of the Vindhya Pradesh Ordinance to the proceedings of a Special Court are only those provisions which relate to the procedure before the Special Court itself in respect of the proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, of the later decision of the Supreme Court in Syed Qasim Razvi v. The State of Hyderabad ([1952] S. C. R. 710), it was recognised that this point was unsubstantial, unless some material prejudice in the matter of procedure was shown. In this context the learned Attorney-General brought to our notice that even before the Criminal Law Amendment(Special Court) Ordinance No. V of 1949, dated 2nd December, 1949, came into force there was in operation the Code of Criminal Procedure Adaptation (Amendment) Ordinance No. XXVIII of 1949 dated 3rd May, 1949, whereby section 268, Criminal Procedure Code, requiring all trials before a Court of Session to be either by jury or with the aid of assessors was deleted from the Vindhya Pradesh Criminal Procedure Code as adapted. Therefore by the date when the trial in the present case commenced before the Special Court there was no substantial or material prejudice caused to an accused who was tried by the Special Court, and the continuance of such procedure after the Constitution came into force would make no serious difference. What, however, was relied upon was a subsequent change in the situation as a result of section 3 of Central Act No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objections raised in reliance on article 20 of the Constitution. This question arises from the fact that the charges as against the two appellants, in terms, refer to the offences committed as having been under the various sections of the Indian Penal Code as adapted in the United States of Vindhya Pradesh by Ordinance No. XLVIII of 1949. This Ordinance was passed on II th September, 1949, while the offences themselves are said to have been committed in the months of February, March and April, 1949, i.e., months prior to the Ordinance. It is urged therefore that the convictions in this case which were after the Constitution came into force are in respect of an ex post facto law creating offences after the commission of the acts charged as such offences and hence unconstitutional. This contention raises two important questions, viz., (1) the proper construction of article 20 of the Constitution, and (2) whether the various acts in respect of which the appellants were convicted constituted offences in this area only from the date when Ordinance No. XLVIII of 1949 was passed or were already so prior thereto. Article 20(1) of the Constitution is as follows: "No person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fundamental right guaranteed under article 20 is not attracted thereto so as to invalidate such convictions. This contention, however, cannot be upheld. On a careful consideration of the respective articles, one is struck by the marked difference in language used in the Indian and American Constitutions. Sections 9(3) and 10 of article I of the American Constitution merely say that "No ex post facto law shall be passed..." and " No State shall pass ex Post facto law...... But in article 20 of the Indian Constitution the language used is in much wider terms, and what is prohibited is the conviction of a person or his subjection to a penalty under ex post facto laws. The prohibition under the article is not confined to the passing or the validity of the law, but extends to the conviction or the sentence and is based on its character as an ex post facto law. The fullest effect must therefore be given to the actual words used in the article. Nor does such a construction of article 20 result in giving retrospective operation to the fundamental right thereby recognised. All that it amounts to is that the future operation of the fundamental right declared in article 20 may also in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e commission of the offences. It was accordingly suggested that since such a law at the? time when it was passed was a valid law and since this law had the effect of bringing this Ordinance into force from 9th August, 1949, it cannot be said that the convictions are Dot in respect of "a law in force" at the time when the offences were committed. This, however, would be to, import a somewhat technical meaning into the phrase "law in force" as used in article 20. " Law in force" referred to therein must be taken to relate not to a law "deemed" to be in force and thus brought into force, but the law factually in operation at the time or what may be called the then existing law. Otherwise, it is clear that the whole purpose of article 20 would be completely defeated in its application even to ex post facto laws passed after the Constitution. Every such ex post facto law can be made retrospective, as it must be, if it is to regulate acts committed before the actual passing of the Act, and it can well be urged that by such retrospective operation it becomes the law in force at. the time of the commencement of the Act. It is obvious that such a construction which nullifies article 20 cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts requisite for the constitutional invalidity of the convictions is on them. The argument that on the very terms of Ordinance No. XLVIII of 1949 there is no pre-existing law with reference to which the constitutionality of the convictions under article 20 is to be judged is based on sections 2 and 3 (1) of the said Ordinance, which run as follows: Section 2: "The Indian Penal Code as in force generally in the Provinces of India immediately before the commencement of this Ordinance shall apply, and shall be in force in Vindhya Pradesh, subject to the adaptation and modifications set out in the Schedule, and the said Code as so applied shall be deemed to have been in force in Vindhya Pradesh from the 9th day of August, 1948." Section 3 (1): " If immediately before the commencement of this Ordinance there is in force in Vindhya Pradesh or any part thereof any law corresponding to the Indian Penal Code, such law is hereby repealed." It is urged that as a result of these two provisions the pre-existing law, if any, has been repealed as from 9th August, 1948, and that therefore the period bet. ween 9th August, 1948, and 11th September, 1949, on which date Ordinance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th a common executive, legislature and judiciary. That Covenant provided for common administrative arrangements and for the election of a Rajpramukh. Article 9 of the Covenant vested in the Rajpramukh the entire legislative authority of the United State of Vindhya Pradesh until a Constitution to be framed by the appropriate body for the said United State of Vindhya Pradesh provided otherwise. The Maharajah of Rewa became the first Rajpramukh of the United State of Vindhya Pradesh, and we are informed that.though the Covenant provided the 1st day of May, 1948, as the date within which the administration is to be made over to the Rajpramukh by each of the States, some did not, and that, as a fact, the integrated administration by the Rajpramukh in respect of all States came into operation only from the 9th of August, 1948, Meanwhile, however, it appears to have been thought expedient that a fresh Instrument of Accession should be executed by the Rajpramukh on behalf of the United State of Vindhya Pradesh replacing the individual Instruments of Accession which were executed in the months of August, September, October and November, 1947. Consequently a fresh, Instrument of Accession wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dominion of India executed by him on the 20th July, 1948. As already stated, the actual integrated administration under these arrangements came into operation for the entire United State only on the 9th of August, 1948. We may now start with the fact above noticed that the various component States became the United State of Vindhya Pradesh on the 18th March, 1948. In the normal course and in the absence of any attempts to introduce uniform legislation throughout the State the pre-existing laws of the various component States would continue to be in force on the well-accepted principle laid down by the Privy Council in Mayor of Lyons v. East India Company (1 M.I.A. 175, at 270,,271). The first step towards the introduction of some uniformity in the laws for the entire State was taken by the Rajpramukh by issuing on the 31st July, 1948, an Ordinance styled the Vindhya Pradesh Application of Laws Ordinance No. IV of 1948. Section 2 of that Ordinance provided as follows:"All Acts, Codes, Ordinances and other laws, and rules and regulations made thereunder, which have, by publication in the Rewa Raj Gazette, been enforced in the Rewa State, and continue to be in force, are extended so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame into operition only when that Ordinance was published in the Vindhya Pradesh Gazette, i.e., on the 15th May, 1949, sometime after the commission of the offence in this ,case. To substantiate the view that only such of the Rewa laws which were previously published in the Rewa Gazette were understood as having been originally extended to Vindhya Pradesh by Ordinance No. IV of 1948, a decision of the Vindhya Pradesh High Court dated the 29th October, 1949, in Criminal Appeal No. 27 has been brought to our notice which assumes that the Prisoners' Act in force in India was not in force in Vindhya Pradesh as there was no previous publication of it in the Rewa Gazette. On the other side a notification of Vindhya Pradesh Government dated the 19th March, 1949, and published in the Vindhya Pradesh Gazette dated the 30th March, 1949, has been brought to our notice which specifically mentions all the laws by then in force in Vindhya Pradesh and shows "Indian Penal Code-mutatis mutandis-with necessary adaptations" as item 86 thereof This is relied on to show that there must have been a previous publication thereof in the Rewa Gazette before integration. There seems to be considerable force ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of what has been found above, viz., that by virtue of the Orders of the Regent of Rewa dated 1921 and 1922 the Indian Penal Code and Criminal Procedure Code with the necessary adaptations mutatis mutandis were in force in Rewa State and either became extended to the entire Vindhya Pradesh State from the 9th August, 1948, by Ordinance No. IV of 1948 or continued to be in force in the Rewa portion of Vindhya Pradesh State by virtue of the principle in Mayor of Lyons' case (I M. I. A. 175) it is prima facie correct to say that the penal law in force in the relevant area was substantially the same both before and after the above-mentioned amendments made by the Rajpramukh. It is urged however that in two important respects relevant for our present purpose there is a difference. It is pointed out that there is anamendment as regards the definition of "Public servant" by Ordinance No. XLVIII of 1949. It is also urged that sections 3 and 4 of the Indian Penal Code and section 188 of the Criminal Procedure Code, which are extra-territorial in operation could not have been brought into force into Rewa or Vindhya Pradesh by adaptation or legislation for lack of legislative competence in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about any change in the situation of the first appellant as a public servant. The further question that remains to be considered is whether under the Vindbya Pradesh law, acts committed outside the State are offences and are triable by Vindhya Pradesh courts, and whether in any case there was any such law in factual operation at the date when the acts charged as offences in this case were committed at New Delhi in April, 1949. Under the normal Indian law the relevant legislative provisions are sections 3 and 4, Indian Penal Code, and section 188, Criminal Procedure Code, and the question is whether by express or implied' adaptation mutatis mutandis these sections can be held to have been validly in force in Vindhya Pradesh at the relevant period. It is contended that the rulers of native States had no authority for extra-territorial legislation, and that consequently any adaptation in this behalf cannot be implied and if expressly purporting to be made, cannot be valid. There can be no doubt that the provisions of the Penal Code and the Criminal Procedure Code are in the nature of extraterritorial legislation, and that every sovereign legislative authority has the power to pass s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercised- (a) over European British subjects in all cases; (b) over native Indian subjects in certain cases; (c) over all classes of persons, British or foreign, within certain areas. It is the policy of the Government of India not to allow native courts to exercise jurisdiction in the case of European British subjects but to require them either to be tried by the British courts established in the Native State, or to be sent for trial before a court in British India. The Government of India does not claim similar exclusive jurisdiction over native Indian subjects of His Majesty when within Native States, but doubtless would assert jurisdiction over such persons in cases where it thought the assertion necessary............ " "The Government of India does not, except within specified areas, or under special circumstances, such as during the minority of a native prince, take over or interfere with the Jurisdiction of the courts of a Native State in cases affecting only the subjects of that State, but leaves such cases to be dealt with by the native courts in accordance with native laws." Lee Warner in his book on "Protected Princes of India" states the position ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Government and a fairly recent judoment of the Rewa High Court in 1945 have been brought to our notice to show the contrary at least so far as Rewa State is concerned. The treaty is to be found at page 255 of Volume V of Aitchison's Treaties, Engagements and' Sanads. Article 6 thereof which is relied on only provides facilities for the suzerain Government to follow and pursue into Rewa State, offenders who having committed offences in British India escape away into the State. This does not negative the authority of the Rewa State to enact legislation concerning its own subjects when they commit such offences outside the State. 1945 Rewa Law Reports 84 is no doubt a case in which the High Court assumed that the court had no jurisdiction to try an offence committed outside the State by a subject of the State. There is no discussion in the judgment of the question involved, and this single instance is not enough to make out either the absence of the State's legislative authority in this behalf or the factual non-existence of the relevant law. It must therefore be held that the rulers of the native States had prior to 1947, the authority to pass extraterritorial laws relating to off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Procedure Code so as to bring into operation sections 3 and 4, Indian Penal Code, and section 188, Criminal Procedure Code, with the necessary modifications in the State of Vindhya Pradesh. Though this argument appears plausible, a careful scrutiny of the scheme of the integration and accession covenants as also of the relevant provisions of the Government of India Act and the Indian Independence Act shows clearly that such an argument is not tenable. The provisions under the Government of India Act under which the Instrument of Accession has been executed keep the position of the Provinces distinct from the position of the acceding States. Section 5(1) of the Government of India Act while making the provinces as well as the acceding States, part of the Dominion of India enumerates the two under separate categories by clauses (a) and (b). Subsection (2) of section 6 specifically provided that, "An Instrument of Accession shall specify the matters which the Ruler accepts as matters with respect to which the Federal Legislature may make laws for his State, and the limitations, if any, to which the I power of the Federal Legislature to make laws for his State, and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d outside the State by its subjects as offences and to vest in the State courts authority to deal with such offences, that power has not in any way been curtailed either by the integration Covenant or the Instrument of Accession. It follows therefore that sections 3 and 4, Indian Penal Code, and section 188, Criminal Procedure Code, at least in so far as it affected the subjects and courts of the State, were entirely within the legislative competence of the States concerned for all purposes of adaptation or amendments. Now, so far as sections 3 and 4 of the Indian Penal Code are concerned, the amendment brought about by Ordinance No. XLVIII of 1949 is nothing more and nothing less than a mere adaptation of these sections for the new set-up and this, as shown above, was exactly the law already in force without formal amendment. Hence it would follow that the conviction of the appellants in respect of all the offences of which they are charged including the extra-territorial offence said to have been committed by the first appellant at New Delhi is not open to the objection under article 20 on the ground that it is a conviction under an ex post facto law. As regards the amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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