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TMI Blog1947 (4) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... on February 19, 1946, against five accused before a special tribunal known as the Second Lahore Tribunal, in respect of certain acts of the accused alleged to have been committed during the month of November 1943 in contravention of the provisions of Clauses 5 and 8 of the Iron and Steel (Control of Distribution) Order, 1941. Such contraventions were alleged to constitute offences punishable under certain of the Defence of India Rules, and in respect of them the said Tribunal on October 14, 1946, despite previous lengthy arguments submitted on behalf of the accused against the legal existence of the tribunal and of any jurisdiction in the matters, proceeded to frame charges against the accused. The accused are: 1. Juggilal Kamlapat Gas Plant Manufacturing Company, Limited, Rarnpur, through Kailashpat Singhania, Kamla Tower, Cawnpore. 2. Juggilal Kamlapat (Rampur) Limited, through Kailashpat Singhania, Kamla Tower, Cawnpore. 3. Kailashpat Singhania, Kamla Tower, Cawnpore. 4. B.B. Mathur, Bandi Bilas, Arya Nagar, Cawnpore. 5. S.K. Seth, Manager, Juggilal Kamlapat Gas Plant Manufacturing Company (Rampur) Limited, Kamla Tower, Cawnpore. The first two accused both cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... troduced into Sub-rule (2) of Rule 81. Rule 81 was itself made under the rule-making powers conferred by Section 2 of the Defence of India Act, 1939, upon the Central Government . The Defence of India Act, 1939, was a Central Act to which the provisions of the General Clauses Act (X of 1897) applied. By Rule 3(7) of the Defence of India Rules it is provided that the General Clauses Act, 1897, shall apply to the interpretation of the Defence of India Rules as it applies to the interpretation: of a Central Act. 5. By the General Clauses Act (X of 1897), as modified by the Government of India (Adaptation of Indian Laws) Order, 1937, it is provided that (8ab) 'Central Government' shall- (a) in relation to anything done or to be done after the commencement of Part III of the Government of India Act, mean the Federal Government; (18a) 'Federal Government' shall (a) in relation to anything done or to be done after the commencement of Part III of the Government of India Act, 1935, but before the establishment of the Federation, mean, as respeets matters with respect to which the Governor General is by and under the provisions of the said Act for the time being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s being the order or the act of the Governor-General in Council. The Distribution Order on the face of it purports to be made by the Central Government . It has been signed by a Secretary to the Government of India. It was therefore argued that while the condition as to signature may have been fulfilled, the condition about the order being expressed to be made by the Governor-General in Council has not been complied with. 9. In supprt of this contention strong reliance was placed on the wording of Sections 17 and 59 of the Constitution Act. Counsel drew attention to Section 175 of the Constitution Act corresponding to Section 30 of the Government of India Act of 1915, with reference to orders passed by the Provincial Governors. It was pointed out that the old Section 30 has been construed to be imperative. It has been held that a contract has to be made in the name of the Provincial Government and also signed by the authorised person. Reliance was placed in this connection on Secretary of State v. Bhagwandas Goverdhandas (1937) 40 Bom. L.R. 19, and the obesrvations in particular at p. 28. That case, however, is not helpful, because the initial correspondence, which was conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l principles on which Courts have to decide such cases as this, where a statute requires that something shall be done in a particular manner without expressly declaring what shall be the consequences of noncompliance, are in our judgment accurately and conveniently set out in Section 3- Imperative or Directory -on pp. 372 to 374 of Maxwell. It is to be noted that the question whether the provision is affirmative or negative has a material bearing. If it is in the affirmative, it is a weaker case for reading the provisons as mandatory, Vita Food Products Inc. v. Units Shipping Co. [1939] A.C. 277. Further according to this passage in Maxwell, we are in our judgment entitled to consider certain questions:- First, would the whole aim and object of the Legislature in constituting the Governor-General in Council and conferring the far-reaching powers which have by statute been conferred on the Governor-General in Council be plainly defeated if the provisions of Section 40(1) were not held to imply a prohibition to allow validity to orders of the Governor-General in Council expressed otherwise than as provided in Sub-section (1) of Section 40? Secondly, would the construction contended f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... include 'proceedings'. In the case of 'proceedings' it is still more clearly a method of recording proceedings which have already taken place which is being prescribed rather than any form in which proceedings must take place if they are to be valid. Thirdly, there is the addition of the provisions relating to the signature by a Secretary to the Government of India or other persons indicated, which clearly indicates that it is a provision as to the manner in which a previously made order should be embodied in publishable form. Lastly, there is the result indicated in the last words of the sub-section, that if the previous directions, either both the directions as to the expressing of orders and proceedings and that as to signatue or the latter as to signature only (whichever be the true construction) are complied with, the orders and proceedings shall not be called into question in a Court of law on one ground only. All these points in the sub-section itself indicate that it is not a sub-section prescribing a manner and form in which orders of the Governor-General must be made to be valid. It may be that there are two possible constructions of the sub-section. Eithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the application thereto of the General Clauses Act (X of 1897), the expression Central Government in the Distribution Order has to be construed as the equivalent of the Governor-General in Council. In the circumstances there is no substantial differene in such an order, which has to be construed in the Courts of British India, in accordance with the General Clauses Act (X of 1897), whether the phrase Governor-General in Council is used or the phrase the Central Government. The latter phrase has to be construed as meaning the former. 15. In our judgment there is therefore no force in this first contention urged on behalf of the appellants. 16. Some attempt was then made on behalf of the appellants to suggest that on some evidence tendered to the Tribunal by the Crown before the charges were framed it might be deduced that the Distribution Order was made and approved by one Member of the Council only and not by the Governor-General in Council at all and might therefore be invalid. In this connection reference was made to the Rules of Business made under the powers conferred on the Governor-General by Sub-section (2) of Section 40 which purported to authorise such action by one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to it by notification in the official Gazette. By a notification in the Gazette of November 21, 1945, the Central Government purported to allot for trial to the Second Lahore Tribunal at Lahore the case to which this appeal refers. 18. Ordinance I of 1946, promulgated on January 5, 1946, repealed a number of Ordinances, including Ordinance LII of 1944, which was the Ordinance amending the original Ordinance XXIX of 1943 so as to authorise, as stated, the constitution of the Second Special Tribunal at Lahore. A submission, somewhat tentatively advanced, that after the repeal of Ordinance LII of 1944 the Second Lahore Tribunal ceased to exist, could not be maintained and was not persisted in, having regard to the saving provisions in Clause 3 of Ordinance I of 1946 itself and Section 6A of the General Clauses Act (X of 1897). Thereafter the attack was developed on more general lines. 19. These Ordinances were made under the powers conferred on the Governor-General by Section 72 of the Ninth Schedule to the Constitution Act, as amended by the India and Burma (Emergency Provisions) Act, 1940 (3 4 Geo. VI, c. 33). Under the said Section 72, as it originally stood, Ordinances w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unless imposed by the Ordinances themselves, or other amending or repealing legislation, whether by Ordinance or otherwise. In our judgment it is clear that the Second Lahore Tribunal did not cease to exist or to have jurisdiction in the case under appeal by reason of the expiration on April 1, 1940, of the period specified in Section 3 of the Act in question. 21. On the other hand, it must be remembered that the constitution and jurisdiction vested in the Second Special Tribunal at Lahore and the subject matters of the Distribution Order were prima facie matters which would come within List II-Provincial Legislative List-in the Seventh Schedule and in particular within items Nos. 1, 2, 29, and 37 and that the power of making Ordinances promulgated under Section 72 (whether within the period specified in Section 3 of the said Act of 1940 or not) is subject to the like restrictions as the powers of the Indian Legislature to make laws. Under the transitional provisions in Part XIII of the Constitution Act and Section 316 thereof in particular, the Indian Legislature was given the powers of legislation conferred on the Federal Legislature by the provisions for the time being in fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. required by Sub-section (4) of section one hundred and two of the Government of India Act, 1935, except to the extent to which the said Legislature would not, but for the issue of that Proclamation, have been competent to make it, and accordingly, in the said Sub-section (4) for the words 'shall cease to have effect' there shall be substituted the words shall, to the extent of the incompeteney, cease to have effect. 24. So far therefore as the constitution and jurisdiction of the Second Lahore Tribunal in respect of the alleged offences by the appellants against the provisions of the Distribution Order is concerned, it may well be that they might have come to an end on September 30, 1946, had not an Act of the Bombay Legislature (No. XXI of 1046) been passed and published on September 80, 1946, having been assented to by the Governor-General on September 28, 1946. This Act provided that the Tribunal (meaning the Special Tribunal known as the Second Special Tribunal at Lahore) should have jurisdiction to try the cases specified in the Schedule of the Act as if it had been constituted by an Act of the Provincial Legislature. In the Schedule were included two cases, nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules and orders made thereunder; likewise all offences, proceedings and prosecutions thereunder, unless authority is to be found to save them in some provision in the Act itself or elsewhere. 27. By Ordinance XII of 1946, promulgated on March 30, 1946, Sub-section (4) of Section 1 of the Defence of India Act, 1939, was amended by the addition of the following saving provisions:- But its expiry under the operation of this sub-section shall not affect- (a) the previous operation of, or anything duly done or suffered under, this Act or any rule made thereunder or any order made under any such rule, or (b) any right, privilege, obligation or liability acquired, accrued or incurred under this Act or any rule made thereunder or any order made under any of such rule, or (c) any penalty, forfeiture or punishment incurred in respect of any contravention of any rule made under this Act or any order made under any such rule, or (d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reports of a recent case in England of a very similar nature under the English Emergency Powers (Defence) Act, 1939. The case is Wicks v. Director of Public Prosecutions. At present this Court has only received the reports published in 62 T.L.R. 674 (Court of Criminal Appeal) and 63 T.L.R. 6 (House of Lords.) The decision is not binding on this Court but of course must be considered by us with deep respect, particularly having regard to the fact that the Lord Chief Justice and four Judges in the Court of Criminal Appeal and Viscount Simon and six others of their Lordships all came to the same conclusion. The relevant facts of the case as reported in the House of Lords were as follows:- The offences charged against the appellant were committed between April, 1943, and January, 1944, and were offences against regulation 2A of the Defence (General ) Regulations, 1939, made under the Emergency Powers (Defence) Act, 1939. The Act and the regulations expired on February 24, 1046. The appellant was arrested on March 31, 1946, and convicted on May 28, 1946. He contended that a prosecution could not validly be launched against him after the regulation on which it was based had expired. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in Section 11. Section 11 begins with the words 'Subject to the provisions of this section,' and those introductory words are enough to warn anybody that the provision which is following immediately is not absolute, but is going to be qualified in some way by what follows. It is therefore not the case that, at the date chosen, the Act expires in every sense; there is a qualification. Without discussing whether the intermediate words are qualifications, Sub-section (3), in my opinion, is quite plainly a qualification. It begins with the phrase, The expiry of this Act -A noun which corresponds with the verb expire - The expiry of this Act shall not affect the operation thereof as respects things previously done or omitted to be done. Counsel for the appellant have therefore been driven to argue ingeniously, but to admit candidly, that the contention which they are putting forward is that the phrase things previously done does not cover offences previously committed. I think that view cannot be correct. It is clear that Parliament did not intend Sub-section (3) to expire with the rest of the Act, and that its presence in the statute is a provision which preserves th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut in the judgment in Criminal Appeal No. 1, without a valid permit and without a valid priority certificate, and procured the movement of these commodities by rail to Wadi Bunder, Bombay, thus rendering themselves liable to punishment under Rule 81(4) of the Defence of India Rules. 36. The Iron and Steel (Movement by Rail) Order, 1942 (hereafter referred to as 'the Movement Order') was comprised in Government Notification No. 914 of September 17, 1942, which was published in the Governement Gazette of September 26, 1942. It was made under the powers conferred by Sub-rule (2) of Rule 81 of the Defence of India Rules. It was expressed to be an order made by the Central Government . While, however, the Distribution Order dealt with matters within the Provincial Legislative List in the Seventh Schedule to the Constitution Act, the Movement Order dealt with matters within the Federal Legislative List, being in particular matters within items 20 and 42 in List I in the Seventh Schedule. Subsequently to the lodging of the complaint, the proceedings against the accused before the Tribunal progressed in the same way as in Criminal Appeal No. 1. In these proceedings also, as soo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... landed cost of ₹ 3-15-5 and had thus committed an offence as regards appellant No. 1 punishable under Rule 81(4), and as regards the rest of the appellants under Rule 81(4) read with Rule 121, of the Defence of India Rules. Evidence was taken and on September 18, 1946, charges were framed. The case was adjourned to October 2, 1946, on which date the appellants raised objections against the continuance of the trial and upon this objection the Presidency Magistrate referred the matter to the Bombay High Court for opinion under Section 482 of the Criminal Procedure Code. The High Court sent an answer to the reference following their judgment in Criminal Appeals Nos. 1 and 2 above and directed that the trial should continue. A certificate under Section 205 was however granted suo motu by the High Court. 40. All the arguments which were advanced in Criminal Appeal No. 1 of 1947, except those as to the existence and jurisdiction of the Tribunal, were also submitted as applicable in this case. 41. Our judgment on the relevant points in Criminal Appeal No. 1 of 1947 governs this case. This appeal fails and is dismissed. 42. [After dealing separately with the facts of each of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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