dedol-hf/india-case-legal-rag huggingface dataset:
DAS J.--I prefer to base my decision on issue No. 6  and
I express no opinion on the other preliminary issues  argued
before us.
    The  seven  suits which have been posted before  us  for
hearing on several preliminary issues came to be  instituted
in the following circumstances:
516
    On  different  dates hereinafter mentioned each  of  the
plaintiff States acceded to the Dominion of India by  virtue
of  Instruments  of Accession executed by  their  respective
Rulers and  accepted by the Governor-General of India.  Each
of  the said States also entered into standstill  agreements
with the Dominion of India. Later on, each of the  plaintiff
States entered into separate Articles of Agreement with  the
GovernorGeneral  of  India.  Instruments  of  Accession  and
standstill agreements entered into by the State of Seraikel-
la (plaintiff in Suit No. 1 of 1950), the State of Dhenkanal
(plaintiff  in Suit No. 2 of 1950), and the State  of  Baudh
(plaintiff in Suit No. 3 of 1950) were executed on or  about
August 16, 1947, by the State of Tigiria (plaintiff  in'Suit
No. 4 of '1950) and the State of Athgarh (plaintiff in  Suit
No.  5  of  1950) on August 15, 1947, and by  the  State  of
Baramba  (plaintiff in Suit No. 6 of 1950) and the State  of
Narsinghpur  (plaintiff in Suit No. 7 of 1950) on  July  18,
1947,  and  November 11, 1947,  respectively.   Articles  of
Agreement were executed by the States of Seraikella,   Dhen-
kanal  and Baudh on December 15, 1947, and by the States  of
Tigiria, Athgarh, Baramba  and  Narsinghpur on December  14,
1947.
    By the Instruments of Accession, which were in the  same
terms in all the cases, the respective Rulers of the  plain-
tiff States acceded to the Dominion of India with the intent
that  the Governor-General of India, the  Dominion  Legisla-
ture, the Federal Court and any other administrative author-
ity should, by virtue of the said Instruments but subject to
the terms thereof and for the purposes only of the Dominion,
exercise  in relation to the State concerned such  functions
as  might  be vested in them by or under the  Government  of
India Act, 1935, as in force in the Dominion of India on the
15th  of August, 1947.  By article 3 of the said  Instrument
of  Accession,  the respective Rulers accepted  the  matters
specified  in the Schedule as matters with respect to  which
the Dominion Legislature might make laws for the  respective
States.   The matters specified in the  Schedule  comprised,
broadly speaking,
517
Defence,  External  Affairs  and  Communications. Article  5
provided  that  the  terms of the  Instrument  of  Accession
should  not be varied by any amendment of the Government  of
India  Act or of the Indian Independence Act,  1947,  unless
such  amendment was accepted by the Ruler by  an  Instrument
supplementary  to  the Instrument of Accession.   Article  7
provided that nothing in the Instrument of Accession  should
be deemed to commit the Ruler of the State concerned in  any
way to acceptance of any future Constitution of India or  to
fetter  his discretion to enter into arrangements  with  the
Government  of  India under any  such  future  Constitution.
Article  8 preserved the continuance of the  Ruler's  sover-
eignty  in and over his State, and, save as provided  by  or
under  the  Instrument  of Accession, the  exercise  of  all
powers, authority and rights then enjoyed by him as Ruler of
the State.
    By the standstill agreements, which were also in similar
terms, all agreements and  administrative arrangements as to
matters  of common concern then existing between  the  Crown
and  any Indian State continued as between the  Dominion  of
India and the State.
    By  article 1 of the Agreements,  the respective  Rulers
ceded to the Dominion Government full and exclusive authori-
ty,  jurisdiction  and  powers for and in  relation  to  the
governance of the State and agreed to transfer the  adminis-
tration of the State to the Dominion Government on the first
day  of January, 1948, and the Dominion Government, as  from
the  last mentioned date, became competent to  exercise  the
ceded powers, authority  and jurisdiction in such manner and
through such agency as it might think fit. Article 2 secured
to  the respective Rulers their respective privy purse.   It
may  here  be mentioned that the amount of the  privy  purse
payable to the Rulers of the States of Seraikella, Dhenkanal
and  Baudh  not having been agreed upon at the date  of  the
signing  of the Articles of Agreements the space  meant  for
inserting the amount of privy purse was left blank in the
518
Agreements  signed by the said Rulers.  Article 3  preserved
the  Ruler's  full ownership, use and enjoyment of  all  his
private  properties  as  distinct  from  State   properties.
Article  4  saved  all personal privileges  enjoyed  by  the
Rulers  whether  within or outside the  territories  of  the
States  immediately  before the 15th day  of  August,  1947.
Article  5  guaranteed the succession according to  law  and
custom to the Gaddi of the State and to the Ruler's personal
rights, privileges, dignities and titles.
       On December 24, 1947, the Extra-Provincial  Jurisdic-
tion  Act, 1947 (Act XLVII of 1947) received the  assent  of
the  Governor-General and came into force. The  preamble  of
the  Act and the definition, in section 2 of  'extra-provin-
cial  jurisdiction'  made it quite clear  that  the  Central
Government could, under this Act, exercise  extra-provincial
jurisdiction  over a State only if it had by treaty,  agree-
ment  etc. acquired full and exclusive authority,  jurisdic-
tion and powers for and in relation to the governance of the
State. In the case of these seven States the Central Govern-
ment could exercise extra-provincial jurisdiction over  them
only on the strength of the Articles of Agreement of  Decem-
ber, 1947. It could not exercise extra-provincial  jurisdic-
tion by reason of the Instrument of Accession.
On December 23, 1947, the Central Government issued a  noti-
fication purporting to delegate its extra-provincial  juris-
diction  with  respect  to the plaintiff  States  under  the
Extra-Provincial Jurisdiction Act, 1947 (No. XLVII of  1947)
to  the  Government  of Orissa which   at   once  began   to
exercise  extra-provincial  jurisdiction   over  the   seven
States.  It is not quite clear how there could be a  delega-
tion of jurisdiction  before  the  Act came  into force.  Be
that as it may, on May  18,  1948,  another notification was
issued by the Central Government  under sections 3 and 4  of
the Extra-Provincial Jurisdiction Act, 1947, cancelling  the
previous  notification  with respect only to  the  State  of
Seraikella  and  the State of Kharsawsn and  delegating  its
jurisdiction  in or in relation to those two States  to  the
Government of
519
Bihar  and  on the same date the Government of  Bihar  after
promulgating  the  Seraikella  and  Kharsawan  States  Order
assumed jurisdiction over them.  The other States  continued
to  be administered by the Government of Orissa.   The  Con-
stituent  Assembly  by the Government of  India  (Amendment)
Act,  1949 (No. 1 of 1949) which received the assent of  the
President  of  the  Constituent  Assembly  on  January   10,
1949,  amended the Government of India Act, 1935, by,  inter
alia, inserting the following section as section 290-A:--
    "Administration  of certain acceding States as  a  Chief
Commissioner's Province or as part of a Governor's or  Chief
Commissioner's  Province.--(1)  Where  full  and   exclusive
authority,  jurisdiction and powers for and in  relation  to
the  governance of any Indian State or of any group of  such
States are for the time being exercisable by the Dominion of
India, the Governor-General may by order direct-
    (a)  that  the  State or the group of  States  shall  be
administered in all respects as if the State or the group of
States were a Chief Commissioner's Province; or
    (b)  that  the  State or the group of  States  shall  be
administered  in all respects as if the States or the  group
of  States form part of a Governor's or a Chief  Commission-
er's Province specified in the order:
    Provided that if any order made under clause (b) of this
sub-section  affects  a Governor's Province,  the  Governor-
General shall before  making such order ascertain the  views
of the Government of that Province both with respect to  the
proposal  to make the order and  with respect to the  provi-
sions to be inserted therein"
    It  will be noticed that the Governor-General could  act
under the new sect-ion only where full and exclusive author-
ity,  jurisdiction  and powers for and in  relation  to  the
governance  of  any  Indian State were for  the  time  being
exercisable  by the Dominion of India.  It follows that  the
Governor-General  could,  under this new  section,  make  an
order  of merger with respect to these seven States only  on
the strength of the Articles
67
520
of Agreements of December 1947.  He could not make any  such
order by reason of the Instrument of Accession.
    In  exercise of the powers conferred on him by  the  new
section  290-A,  the  Governor-General, on  July  27,  1949,
promulgated  an Order called the States' Merger  (Governors'
Provinces) Order, 1949. Section 3 of this Order provided  as
follows :--
    "As from the appointed day, the States specified in each
of the Schedules shall be administered in all respects as if
they formed part of the Province specified in the heading of
that Schedule; and accordingly, any reference to an acceding
State in the Government of India Act, 1935, or in any Act or
Ordinance  made on or after the appointed day shall be  con-
strued  as  not including a reference to any of  the  merged
States,  and any reference in any such Act or  Ordinance  as
aforesaid  to  a Province specified in a  Schedule  to  this
Order shall be construed as including the territories of all
the States specified in that Schedule."
    Schedule  III  of  the Order showed that  the  State  of
Seraikella was one of the two States merged in the  Province
of Bihar and Schedule IV showed that the other Orissa States
including  the plaintiffs in Suits Nos. 2 to 7 of 1950  were
merged in the 'Province of Orissa.
    Being aggrieved by the enactments, orders and  notifica-
tions  resulting  in their merger with Bihar or  Orissa  the
plaintiff  States  filed the present suits  in  the  Federal
Court  of India in its Original Jurisdiction. Suit No. 1  of
1950  was filed on or about January 15, 1950, and the  other
six suits were filed on January 23, 1950. The defendants  in
the suits are two in number. The first defendant in all  the
suits  is the Dominion of India and the second defendant  in
Suit No. 1 iS the State of Bihar while the second  defendant
in  all  the other suits is the State of  Orissa.  The  main
written  statements in all the suits are filed on behalf  of
the  first defendant and the second defendant, the State  of
Bihar or the State of Orissa, as the case may be, has adopt-
ed
521
the  contentions set forth in the written statements of  the
first  defendant. An additional written statement was  filed
by the first defendant raising another preliminary issue  of
law which has also been adopted by the second defendant.
    The  Constitution  of India having come  into  force  on
January 26, 1950, all these suits, by virtue of article  374
(2),  stood removed to this Court which was created  by  the
Constitution.   The learned Chamber Judge directed that  the
issue  of law raised in the additional written statement  be
tried as a preliminary issue. When the suits were called  on
for  hearing  on that preliminary issue,  learned  Attorney-
General  handed in a list of 17 issues and it was agreed  by
counsel on both sides that the following issues only  should
be determined first as preliminary issues :--
    1.  Whether having regard to the subject-matter  of  the
suit  and the provisions contained in article 363(1) of  the
Constitution  of India, this Hon'ble Court has  jurisdiction
to entertain the suit ?
    3. Whether the Federal Court had jurisdiction to  enter-
tain  the suit under section 204 of the Government of  India
Act, 1935, and particularly in regard to the questions as to
the existence and validity of the agreement of merger ?
4. Whether this Court has jurisdiction to entertain  the
suit ?
    5.  Whether  the  suit is maintainable in  view  of  the
absence  of  the requisite notice to  the  defendants  under
section 80 of the Civil Procedure Code ?
    6.  Whether having regard to the provisions of the  Con-
stitution the plaintiff has a legal capacity and is entitled
to maintain the suit ?
    7. Whether this Court is competent to examine the valid-
ity  of section 290-A of the Government of India Act,  1935,
enacted by the Constituent assembly ?
    Re Issue No. 6.--1 take up issue No. 6 which appears  to
me  to be decisive. Article 1 of the Constitution says  that
India  shall  be a Union of States and that the  States  and
territories thereof shall be the States and
522
their territories specified in Parts A, B and C of the First
Schedule. The First Schedule to the Constitution in Parts A,
B and C sets out the names of the States and indicates  what
the  territories  of the States shall be comprised  of.  The
third paragraph in Part A provides as follows :-
    "The territory of each of the other States in this  Part
shall comprise the territories which immediately before  the
commencement  of  this Constitution were  comprised  in  the
corresponding Province and the territories which, by  virtue
of  an order made under section 290-A of the  Government  of
India Act, 19.38, were immediately before such  commencement
being administered as if they formed part of that Province.
    The argument is that as the territories of the plaintiff
States.,  by virtue of the States' Merger (Governors'  Prov-
inces) Order, 1949, made under section 290-A of the  Govern-
ment  of  India  Act, 1935,  were  immediately  before   the
commencement  of  the  Constitution being administered as if
they  formed  part  of  the Provinces of Bihar  or   Orissa,
the  territories of the States of Bihar  and  Orissa  there-
fore   now  comprise  the   territories  of   the  plaintiff
States. The subjects of the plaintiff States have now become
the citizens of India, their territories have been merged in
the  State  of Bihar or Orissa, as the case  may  be.  These
States are no longer recognised as States in Parts A, B or C
of  the First Schedule to the Constitution.  In short,  they
have  ceased  to  be States so far as  our  Constitution  is
concerned  and consequently they have no legal existence  as
acceding  States  which  this Court which is  bound  by  the
Constitution  may recognise.  These States, in  the  circum-
stances, cannot come to this Court to enforce their  politi-
cal rights and are no longer entitled to maintain the suits.
Learned  counsel for the plaintiffs, however, contend  that,
the  order  made under section 290-A of  the  Government  of
India Act, being ultra vires and illegal, the territories of
the  States were never lawfully administered as part of  the
Provinces of Bihar or Orissa and, therefore, the territories
of the State of Bihar or Orissa cannot be
523
said to comprise the territories of the plaintiff States. It
seems  to me that the contention of the learned counsel  for
the plaintiffs is misconceived, for the part of the sentence
beginning  with  the  words "which  immediately  before  the
commencement" and ending with the words "formed part of that
Province"  are but description of the territories which  the
Constitution  states are to be comprised in the  territories
of the States of Bihar or Orissa.  The validity or otherwise
of  the order made under section 290-A of the Government  of
India  Act  has no relevancy.  The question is  whether  the
territories  of  the  plaintiff States were  in  fact  being
administered  as  if they formed part of  the  Provinces  of
Bihar  or Orissa and whether such territories were being  so
administered by virtue of an order made under section  290-A
of the Government of India Act.  There can be no doubt  that
the  answer must be in the affirmative. This Court is  bound
by the Constitution and cannot question the validity of  any
of  its provisions. The Constitution says that the  territo-
ries  of  Bihar and Orissa shall  comprise  the  territories
specified  in Part A and this Court must accept  that  posi-
tion.   None of these States is included amongst the  States
named in Parts A, B and C. Our Constitution does not  recog-
nise any of these States as an acceding State.  The  Govern-
ment  of India Act which recognised them as acceding  States
has  been repealed. Therefore, the plaintiff States have  no
existence in the eye of the Constitution and cannot come  to
this  Court  to enforce their political rights.  It  is  not
necessary to consider whether in international law there may
be a State without any territory or without any subject such
as  many of the States, which during the last war  had  been
overrun  by  the invaders and which  functioned  in  foreign
countries  claimed  to be.  The problem before us  is  quite
different.  The States which are plaintiffs in suits Nos. 4,
5,  6  and 7 ceased to be acceding States by reason  of  the
Merger  agreement of December 1947 admittedly  concluded  by
their respective Rulers. In any event, our Constitution  has
quite clearly eliminated these States as such by absorbing
524
their territories with the States of Bihar or Orissa. As our
Constitution  does  not recognise these States  as  acceding
States or even as States, this Court cannot recognise  these
States or their political rights. These cases may have  been
within the jurisdiction of the Federal Court when they  were
instituted,  but since then the Government of India Act  has
been repealed and the new Constitution has come into  force.
Under  'the Constitution, these States do not exist at  all.
Assuming that these States are still in existence  notional-
ly, they have, at any rate, ceased to be States of the  kind
which could maintain a suit under section 204 of the Govern-
ment  of India Act.  After the repeal of the  Government  of
India  Act and the commencement of the Constitution none  of
these States is an acceding State which may continue a  suit
filed  under  section 204.  The suits  must,  therefore,  be
regarded  as having abated by reason of the  elimination  of
the plaintiff States as States or acceding States just as an
ordinary  suit would abate on the death of a plaintiff.   In
my judgment, these suits can no longer be continued in  this
Court.
In view of my decision on issue No. 6, the other prelim-
inary issues need not be considered.
Suits dismissed.
    Agent  for the plaintiffs in Suits Nos. 1, 3 &  4:  R.R.
Biswas.
    Agent  for  the  plaintiffs in Suits Nos. 2  &  5:  P.K.
Chatterjee.
    Agent  for  the  plaintiffs in Suits Nos. 6  &  7:  S.C.
Bannerjee.
Agent for the defendants: P.A. Mehta,
525
PETITIONER:
RAVULA HARIPRASADA RAO
        Vs.
RESPONDENT:
THE STATE.
DATE OF JUDGMENT:
19/03/1951
BENCH:
FAZAL ALI, SAIYID
BENCH:
FAZAL ALI, SAIYID
MAHAJAN, MEHR CHAND
MUKHERJEA, B.K.
AIYAR, N. CHANDRASEKHARA
CITATION:
 1951 AIR  204            1951 SCR  322
 CITATOR INFO :
 RF         1964 SC1140  (20)
 R          1965 SC 722  (11,29)
 R          1966 SC  43  (4)
 R          1966 SC 128  (14)
 F          1971 SC 866  (13)
ACT:
Criminal  law--Mens rea--Motor Spirit  Rationing  Order,
1941,  cls. 22, 25, 27--Defence of India Rules, 1939, r.  81
(4)--Supply  of  petrol without  coupons--Omission  to  make
prescribed  entries  in coupons--Liability of  employer  for
acts of employees--Construction of statutes.
HEADNOTE:
    Unless a statute either clearly or by necessary implica-
tion rules out mens rea as a constituent part of the  crime,
a  person should not be found guilty of an  offence  against
the criminal law unless he has got a guilty mind.
    Clauses  22 and 25 of the Motor Spirit Rationing  Order,
1941,  read  with the Defence of India Rules, 1939,  do  not
rule  out the necessity of mens rea.  Therefore,  where  the
employees of the licensee of a petrol filling station supply
petrol to a car-owner without taking coupons and thus act in
contravention  of  the provisions of the said  clauses,  the
licensee, who was not present when the wrongful act was done
and  had  no  knowledge of it, could not  be  convicted  for
contravention  of  the said clauses under r. 81 (4)  of  the
Defence of India Rules, 1939.
    Clause  27  of  the said Order  is  however  differently
worded  and  imposes a duty on the supplier  to  endorse  or
cause  to be endorsed the registration or other  identifying
mark  of  the vehicle to which petrol is  furnished  and  if
these  particulars are not endorsed by his employees on  the
petrol coupons against which petrol is supplied the supplier
would be liable even if he had no knowledge of the  wrongful
act of his employees.
    Srinivas  Mall Bairolia v. King Emperor (I.L.R. 26  Pat.
46,  P.C.) and Isak Solomon Macmull v. Emperor (A.I.R.  1948
Bom. 364) referred to.
JUDGMENT:
    CRIMINAL APPELLATE JURISDICTION:Appeal (Criminal  Appeal
No. 15 of 1950) from a judgment and order of the High  Court
of  Madras  dated 19th August, 1947,  in  Criminal  Revision
Petitions  Nos. 1017 and 1018 of 1946 rejecting an  applica-
tion to set aside the conviction and sentence of the  appel-
lant by the Sessions Judge of Guntur under clauses 22 and 27
of  the Motor Spirit Rationing Order, 1941.   Special  leave
was
323
granted by the Privy Council and the, appeal was  originally
registered as Privy Council Appeal No. 14 of 1949. The  case
was subsequently transferred to the Supreme Court.
    K.  Bhimasankaran (Durga Bai, with him) for  the  appel-
lant.
   R. Ganapathi Iyer, for the respondent.
   1951. March 19.  The  judgment  of the  Court was  deliv-
ered by
   FAZL ALI J.--This appeal, which has been preferred  after
obtaining special leave to appeal from the Privy Council, is
confined  to the single question whether mens rea is  neces-
sary  to constitute an offence under section 81 of  the  De-
fence of India Rules.
   The  facts of the case are briefly these. The  appellant
is the licensee of two petrol filling stations Nos. 552  and
276  at Guntur but is a resident of Chirala, 40 miles  away.
He  is a Presidency First Class Bench Magistrate at  Chirala
and  manages what has been described as a vast  business  at
several  places. Ch. Venkatarayudu and Dadda  Pichayya,  his
employees,  were  respectively in charge  of  the  aforesaid
filling stations. In 1946, the appellant and his two employ-
ees  were  tried  before the  Sub-Divisional  Magistrate  of
Guntur in respect of offences under the Motor Spirit Ration-
ing Order, 1941, and were convicted in each of the cases  on
the 18th July, 1946. In the first case, the charges  against
the  appellant  and the employee in charge of  the  pump  in
question  therein were that they on the 27th June, 1945,  at
Guntur, supplied petrol to a cars without taking coupons, in
contravention  of clause 22 read with clause 5 of  the  said
Order promulgated under rule 81 (2) of the Defence of  India
Rules and that they, on the same day and at the same  place,
accepted  coupons  relating  to two other  cars  in  advance
without  supplying petrol, in contravention of clause 27  of
the  Order.   The charges in the second case were  that  the
appellant  and  the employee in the  second  pump  similarly
supplied  during the period of 24 hours from 6 a.m.  of  the
28th June, 1945, petrol to 4 motor vehicles
324
without  taking coupons, in contravention of clause 22  read
with  clause 5, accepted coupons of three other vehicles  in
advance  without issuing petrol, in contravention of  clause
27,  and supplied petrol to two other vehicles against  cou-
pons but without making necessary endorsements and  particu-
lars on the reverse of the coupons infringing thereby clause