ON Criminal Appeal No 60 of 1958
Appeal from the judgment and order dated the 19th February 1958 of the Jammu and Kashmir High Court in Writ Petition No 53 of 1957
682 R V section Mani for the appellants
Jaswant Singh Advocate General for the State of Jammu and Kashmir G section Pathak and T M Sen for the respondent
September 10
The Judgment of the Court was delivered by WANCHOO J
This appeal on a certificate granted under article 132 of the Constitution of India hereinafter called the Constitution by the High Court of Jammu and Kashmir raises the constitutionality of the Enemy Agents Ordinance No VIII of section 2005 hereinafter called the Ordinance promulgated by His Highness under section 5 of the Jammu and Kashmir Constitution Act section 1996 hereinafter called the Constitution Act
The appellants also made an application under article 132 3 of the Constitution to this Court for permission to urge other grounds taken by them in the High Court besides those relating to the interpretation of the Constitution
We intimated at the outset of the arguments that this application was being allowed and learned counsel for the appellants was permitted to make his submissions on all points raised in the High Court
The appellants are being prosecuted before a Special Court constituted under the Ordinance for offences under section 3 of the Ordinance sections 3 4 and 5 of the Explosive Substances Act VI of 1908 section 120 B of the Penal Code and section 29 of the Public Security Act read with rr 28 and 32 of the Rules thereunder
The incidents out of which this prosecution arose took place on June 27 and 28 1957
The circumstances in which the Ordinance came to be passed were these Outside raiders began attacking Kashmir on October 22 1947
The State acceded to India on October 26 1947
It appears that the Enemy Agents Ordinance No XIX of section 2004 was enacted soon after in January 1948
There was  cease fire  on January 1 1949 and the raids came to an end
This was followed by the present Ordinance which became law an January 24 1949
The preamble to the Ordin ance says that an emergency had arisen as a result of 683 wanton attacks by outside raiders and enemies of the State which made it necessary to provide for the trial and punishment of enemy agents and persons committing certain offences with intent to aid the enemy and as it was necessary to amend Ordinance XIX of section 2004 therefore the Ordinance was passed consolidating the law and repealing the earlier Ordinance
The main contentions of the appellants in the High Court were that the Ordinance was unconstitutional and void by reason of the violation of article 14 of the Constitution and that His Highness had no legislative competence to enact it and that in any case it came to an end when section 5 of the Constitution Act was repealed in 1951
The High Court was of the view that there was a reasonable classification and that the classification was founded on an intelligible differentia which distinguished persons or things that were grouped together from those left out of the group and the differentia had a rational relation with the object sought to be achieved by the Ordinance
It therefore held that the Ordinance was not hit by article 14
It was further of the view that His Highness had legislative competence to promulgate the Ordinance when he did so and that when certain subjects were made over to the Government of India by the Instrument of Accession the State retained its powers to legislate even on these subjects so long as the State law was not repugnant to any law made by the Central Legislature thus holding that there was concurrent power in the State to legislate even on the subjects transferred to the Government of India
Finally the High Court held that the repeal of section 5 of the Constitution Act did not result in the Ordinance coming to an end as section 6 of the Jammu and Kashmir General Clauses Act saved it
It therefore dismissed the writ petition filed by the appellants
The main contentions of the appellants before us are these  1The Ordinance is unconstitutional as it violates article 14 of the Constitution
2There was no legislative competence in His Highness to issue the Ordinance under section 5 of the 684 Constitution Act as His Highness had executed the Instrument of Accession on October 26 1947 surrendering his powers regarding Defence Communications and External Affairs to the Government of India and the Ordinance came under the head Defence 
3Section 5 of the Constitution Act was repealed by an amending Act No XVII of section 2005 passed on November 17 1951 and therefore the Ordinance also came to an end on the day section 5 was repealed
4The Ordinance has in any case lapsed as the conditions under which it was enacted had become obsolete and did not exist any more
5The Ordinance was void as it was inconsistent with article 352 of the Constitution and the Articles following
1 The Ordinance defines  enemy  and  enemy agent in section 2
Section 3 provides that whoever is an enemy agent or with intent to aid the enemy does or attempts or conspires with any other person to do any act which is designed or likely to give assistance to the military or air operations of the enemy or to impede the military or air operations of Indian forces or His Highness  forces or the forces of any Indian State or to endanger life or is guilty of incendiarism shall be liable to various punishments
Section 4 provides that any offence punishable under section 3 shall be triable under this Ordinance and that where any other offence is committed along with an offence under section 3 which may be jointly tried under the Code of Criminal Procedure a special Judge trying the offence under section 3 shall also try the other offence in accordance with the procedure laid down by the Ordinance
Section 5 provides for appointment and jurisdiction of Special Judges
Section 6 gives power to the government of the State to transfer proceedings from one Special Judge to another and provides for the procedure to be followed by the Special Judge to whom a case is transferred
Section 7 lays down that the procedure for trial of warrant cases shall be followed by Special 685 Judges and no commitment proceedings would be necessary
This action also gives powers to Special Judges in the matter of recording evidence summoning witnesses and adjournments and the Special Judge is deemed to be a Court of Session
Section 8 provides for sentences to be passed by the Special Judge
Section 9 provides for power of review by a Judge of the High Court designated by the Government and the decision of such Judge is made final
Section 10 gives power to the Special Judge and the Reviewing Judge to hear proceedings in camera if it is expedient in the interest of public safety or the defence of the State so to do
Section 11 days down that an accused person triable under the Ordinance may be defended by a  pleader if the Special Judge or the Reviewing Judge grants permission in this behalf and also gives power to the Special Judge or the Reviewing Judge to appoint a pleader for an accused who has not engaged a pleader himself
Section 12 provides for a special rule of evidence empowering the Special Judge to admit certain statements recorded by a magistrate when the person who made them is dead or cannot be found or is incapable of giving evidence
Section 13 provides for powers to deal with a situation arising out of intransigent conduct of accused persons during the course of trial
Section 14 takes away the power of all courts to interfere with the proceedings or orders of the Special Judge or to transfer any case pending before him or to make any order under section 491 of the Code of Criminal Procedure
Section 15 prohibits the giving of copies of records of any case before a Special Judge to any one except to an accused or his pleader and makes it punishable for such accused or pleader to show the copy to any other person or to divulge its contents to anybody except in the course of proceedings for the purpose of which it was obtained
It further provides for the return of the copies within ten days after the conclusion of the proceedings before the Special Judge
Section 16 provides for the application of the Code of Criminal Procedure or any other law for the time being in force to proceedings under the Ordinance in so far as they are not inconsistent with its 87 686 provisions
Section 17 makes disclosure of information prohibited under section 15 punishable
Section 18 gives power to the Government to make rules necessary to carry into effect the purposes of the Ordinance
Section 19
repeals the Enemy Agents Ordinance XlX of section 2004 but provides that all rules made orders issued prosecution and action taken and punishment awarded under the repealed Ordinance shall be deemed to have been made issued taken and awarded under the Ordinance
It will be clear from this analysis of the provisions of the Ordinance that the procedure under the Ordinance is in material respects different from the ordinary procedure of Criminal Courts dealing with offences
The contention of the appellants is that this amounts to discrimination and therefore the Ordinance is void and unconstitutional as it violates article 14 of the Constitution
The provisions of article 14 of the Constitution have come up for discussion before this Court in a number of cases
It is now well established that  while article 14 forbids class legislation it does not forbid reasonable classification for the purposes of legislation
In order however to pass the test of permissible classification two conditions must be fulfilled namely i that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and ii that differentia must have a rational relation to the object sought to be achieved by the statute in question
The classification may be founded on different bases namely geographical or according to objects or occupations or the like
What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consider ation
It is also well established by the decisions of this Court that article 14 condemns discrimination not only by a substantive law but also by a law of procedure see Sri Ram Krishna Dalmia vs Shri Justice section R Tendolkar 1
We have therefore to see whether there is reasonable classification for the purposes of the 1  687 Ordinance
Now the Ordinance was passed in January 1949 soon after the cease fire
But though the attack by the outside raiders and enemies of the State had come to an end it was felt that conditions were such that the emergency continued and it was necessary to provide for trial and punishment of enemy agents and persons committing certain offences with intent to aid the enemy by a special procedure which was enacted in the Ordinance
With that end in view an enemy was defined to mean and include any person directly or indirectly participating or assisting in the campaign recently undertaken by raiders from outside in sub verting the Government established by law in the State An  enemy agent  was defined as meaning  a person not operating as a member of enemy armed force who is employed by or works for or acts on instructions received from the enemy
 It is clear therefore that  enemy  and  enemy agent  are a clearly defined class of persons and would give rise to a reasonable classification for the purpose of the Ordinance
Section 3 provides for punishment of a person who is an enemy agent or who does certain things with intent to aid the enemy
There can be no doubt in the circumstances existing in the State then and now that the classification is reasonable and is founded on an intelligible differentia which distinguished persons brought under the Ordinance from others
There is also no doubt that the differentia had a rational relation to the object sought to be achieved by the Ordinance
There had recently been a campaign to subvert the government established by law in the State and though the actual raids were over the danger of subversion of the government was not over and the threat from those who intended to aid the enemy continued
In these circumstances the Ordinance was enacted and provided a special procedure for the trial of enemy agents or those who did certain things with intent to aid the enemy the object of such persons being to subvert the government established bylaw in the State
If it is said that the Ordinance does not purport to make any classification of persons at all but only creates an offence and 688 provides a stringent procedure for the punishment of that offence then there is no discrimination at all for anybody who commits that offence is subjected to the drastic procedure
It has also to be remembered that in order to repel the charge of discrimination the permissible classification need not be of persons only
Certain offences may be so heinous or serious that they may in certain circumstances be treated as a class and tried in a different way
The offence created by section 3 of the Ordinance is not found as such in the Penal Code but is a new offence of an aggravated kind which may in the circumstances prevailing in the State mentioned above be treated as different from the ordinary offences and may well be dealt with by a drastic procedure without encountering the charge of violation of the equal protection clause
We are therefore of opinion that on the principles laid down by this Court in the large number of cases summarised in the Dalmia case 1 the Ordinance cannot be said to be discriminatory and therefore violative of article 14 of the Constitution
The contention under this head on the constitutionality of the Ordinance therefore must be rejected
The Ordinance purports to have been promulgated under section 5 of the Constitution Act which declared that all powers legislative executive and judicial in relation to the State and its government were always inherent in and possessed and retained by His Highness and nothing in the Act was to affect or deemed to have affected the right and prerogative of His Highness to make laws and issue proclamations orders and ordinances by virtue of his inherent authority
It is however submitted that on account of the accession of the State to India on October 26 1947 certain matters were surrendered to the Government of India and therefore His Highness had no power left to legislate on matters so surrendered
These matters are to be found in the Schedule to the Instrument of Accession 2
This Schedule consists of 20 items grouped under 1 19591 SCR 279
2 Appendix VII of the White Paper on Indian States p 165
689 four heads A Defence B External Affairs C Communications and D Ancillary
We are not here concerned with heads B and C and need only consider the items under A and D
There are four items under the head  Defence  namely 1The naval military and air forces of the Dominion and any other armed force raised or maintained by the Dominion any armed forces including forces raised or maintained by an acceding State which are attached to or operating with any of the armed forces of the Dominion
2Naval military and air force works administration of cantonment areas
Arms fire arms ammunition
Explosives
And there are four items under the head  Ancillary namely 1Elections to the Dominion Legislature subject to the provisions of the Act and of any Order made thereunder
Offences against laws with respect to any of the aforesaid matters
3Inquiries and statistics for the purposes of any of the aforesaid matters
4Jurisdiction and powers of all courts with respect to any of the aforesaid matters but except with the consent of the Ruler of the acceding State not so as to confer any jurisdiction or powers upon any courts other than courts ordinarily exercising jurisdiction in or in relation to that State
The contention on behalf of the appellants is that the provisions of the Ordinance were in particular covered by item 1 under the head  Defence 
It is also urged that the High Court was not correct in holding that there was concurrent jurisdiction in the State as well as the Central Legislature even with respect to items in the Schedule and that on a correct interpretation of the Instrument of Accession the Central Legislature alone had power to legislate with respect to the matters in the Schedule
We do not think it necessary to decide in this case whether the State had concurrent 690 powers to legislate on matters covered by the Schedule and shall proceed on the assumption that the Central Legislature alone had the power to legislate on these matters
The question then which immediately arises is whether the Ordinance is covered by item 1 under the head  Defence The other items either under the head  Defence or under the head  Ancillary are immaterial for this purpose
If the Ordinance is not covered by item 1 under the head Defence  it would then be within the competence of the State Legislature or of His Highness to promulgate it for all other matters besides those covered by the twenty items in the Schedule in any case remained with the State
Item 1 under the head  Defence  deals with the naval military and air forces of the Dominion and any other armed forces raised or maintained by the Dominion and includes any armed forces including those raised or maintained by any acceding State which are attached to or operating with any armed forces of the Dominion
Howsoever wide an interpret ation is given to this entry it will be seen that it deals only with the armed forces whether on land or sea or in the air and the raising or maintenance of such forces and their operations
The Ordinance has in our opinion nothing to do with the matters covered by this entry
It is true that it defines  enemy  and  enemy agent  and creates offences with reference to certain acts done with intent to aid the enemy including giving of assistance to the military or air operations of the enemy or impeding the military or air operations of Indian forces or His Highness  forces or the forces of any Indian State
But it is only indirectly concerned with the operations of the armed forces and its main purpose is to deal with persons who with intent to aid the enemy commit certain acts including assistance to the military or air operations of the enemy or impediment to the military or air operations of the Indian armed forces
Besides this reference to military or air operations the rest of the provisions of the Act has nothing to do with the armed forces and if one looks at the pith and substance of the Ordinance it will be found that it deals with persons who are concerned with the 691 subversion of the government established by law by becoming enemy agents or doing certain acts with intent to aid the enemy
In pith and substance therefore the Ordinance deals with public order and criminal law and procedure the mere fact that there is an indirect impact on armed forces in section 3 of the Ordinance will not make it in pith and substance a law covered by item 1 under the head Defence in the Schedule
We are therefore of opinion that there is no force in the contention that the Ordinance was beyond the legislative competence of His Highness because certain matters were ceded in the Instrument of Accession dated October 26 1947 to the Government of India
This contention must also fail
The contention is that as section 5 of the Constitution Act was repealed on November 17 1951 the Ordinance which is stated to have been passed under that section also came to an end
It is enough to say that there is no force in this argument
Clause b of section 6 of the Jammu and Kashmir General Clauses Act JKXX of section 1977 clearly saves the Ordinance
It is as follows  Where this Act or any Act made after the commencement of this Act repeals any enactment hitherto made or hereafter to be made then unless a different intention appears the repeal shall not  b affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder It will be clear that the promulgation of the Ordinance was a thing duly done under section 5 of the Constitution Act and the repeal of section 5 of the Constitution Act would thus leave the Ordinance which was promulgated thereunder entirely unaffected
The repeal of section 5 can only mean the withdrawal of that legislative power on and from the date of repeal
Anything done while the power subsisted cannot be affected by such repeal
A law enacted under a Constitution Act does not lose its vitality and would continue even though there may be repeal of parts of the Constitution Act under which it was enacted as long as the law 692 is not inconsistent with the Constitution Act as it emerges after the amendment and repeal of certain provisions thereof
It derives its binding force from the fact that it was within the competence of the legislature when it was passed and being permanent would continue till amended or repealed under the amended Constitution Act
We are therefore of opinion that the Ordinance did not come to an end on the repeal of section 5 of the Constitution Act and remained a valid piece of legislation in view of section 6 b of the Jammu and Kashmir General Clauses Act
It is urged that the conditions in the State have changed considerably since 1949 and therefore the Ordinance must be held to have lapsed
It is enough to say that there is nothing in this contention even assuming that conditions in the State are not now exactly the same as they were in 1949
The Ordinance was a permanent piece of legislation
It is true that it came into existence because of an emergency but that was only the occasion for passing the Ordinance
The Ordinance however tries to reach an evil of deeper roots an evil which cannot be said to have ceased to exist viz subversion of the government established by law in the State in conjunction with the enemies of the State
Being a permanent law it can only be brought to an end by means of repeal by competent authority
It is not the case of the appellants that the Ordinance has been repealed by any competent authority
It must therefore be held to be in force till such repeal even if the conditions now are assumed not to be exactly the same as in 1949
This contention therefore also fails
It is urged that the Ordinance was unconstitutional because it is inconsistent with article 352 and the subsequent Articles
We must say that article 352 and the subsequent Articles in Part XVIII of the Constitution relating to Emergency Provisions have nothing whatsoever to do with the validity or otherwise of the Ordinance
We have been unable to understand how there can be any inconsistency between the Ordinance 693 and the provisions contained in Part XVIII of the Constitution
This contention also fails
It now remains to notice three points that were urged during the course of arguments on behalf of the appellants namely i section 4 1 of the Ordinance is hit by article 20 1 of the Constitution ii section 11 1 is hit by article 22 1 of the Constitution and iii the Special Judge has no jurisdiction to try an offence under the Explosive Substances Act
Apart from the fact that these points not having been raised by the appellants in their writ petition or urged before the High Court we should be reluctant to permit them to raise these points for the first time in this Court we may in passing point out that the offences for which the appellants are being prosecuted are said to have taken place in June 1957 and that they have been allowed to engage lawyers of their choice
They can therefore have no grievance so far as the first two points are concerned and we leave them to be decided in a case where there is grievance
There is no substance in the third point
There is no force therefore in this appeal and it is hereby dismissed
Appeal dismissed


Summary:
In his return of agricultural income for the assessment year I944 45 the appellant showed a sum of Rs 282192 which he had paid to the Tekari Rai for two lease hold properties taken on Zarpeshgi lease as one of the items of the total amount of deduction claimed by him as capital receipt
The Agricultural Income tax Officer accepted his claim and exempted the amount from Payment of agricultural income tax
The Assistant Commissioner of Agricultural Income tax affirmed the decision
A demand notice was issued and the assessee paid two instalments
Thereafter the Agricultural Income tax Officer served on the assessee a notice under section 26 of the Bihar Agricultural  to the effect that income from the said Zarpeshgi lease had escaped assessment and after he appeared passed a 333 supplementary assessment order and assessed Rs 395I2 6 o as tax
The assessee appealed
The Commissioner of Agricultural Income tax reversed the said decision
The Province of Bihar moved the Board of Revenue and the two questions it referred to the High Court under section 251 Of the Act were 1 whether in the facts and circumstances of the case the Agricultural Income tax Officer had jurisdiction to revise his own order under section 26 of the Act and 2 if so whether the income from the Zarpeshgi lease was taxable under the Act
The High Court answered both the questions in favour of the State of Bihar
Hence this appeal by the assessee by special leave
Held that under section 26 of the Bihar Agricultural  the Agricultural Income tax Officer had the power to revise his own order and assess an item of income which even though shown in the return he had earlier omitted to tax under a misapprehension that it was not taxable
The use of the words  any reason  in section 26 of the Act made the section wider than section 34 Of the Indian by dispensing with the conditions which circumscribed the section
Kamal Singh vs Commissioner of Income tax Bihar  Orissa   applied
Messrs Chatturam Hoyilyam Ltd vs Commissioner of Income tax Bihar and Orissa   distinguished
Case law discussed
Since the appellant had failed to prove his case that the income in question was income from his money lending business or that the payment made to the lessor was not by way of premium but as a loan the income from the lease hold property which was admittedly agricultural in character must be held to be liable to tax under the Act irrespective of the character of the recipient