• •

SUPREME COURT REPORTS [1953]

that basis against respondent 3 who is pnly a nominat ed member.

N ain Sukh Da/J

and Another The petitioners appear to have misconceived their

The State of U ttar Pradesh

and Others.

Patanjali Sastri

0.J.

.ilfay 22

remedy and their application under article 32 must fail.

The petition is dismissed with costs, one set.

Petition dismissed.

Agent for the petitioners: K. L. 11fehta.

Agent for respondent No. 1 : 0. P. Lal.

Agent for respondent No. 4: S. P. Varma.

RAO SHIV BAHADUR SINGH AND ANOTHER

v .

THE STATE OF VINDHYAPRADESH.

PATANJALI SASTm C. J., Mt:KHERJEA, VIVIAN BosE,

GHULAM HASAN and JAGANNADHA DAS JJ.

Constitution of India, 1950, Art.1. 14, 20-Acts committed in Rewa State in 1949 before Vindhya. Pradesh Ordinance No. XL VIII of 1949-Charge mider said Ordinance and tr-ial under Vindh:yr>

Pradesh Criininr<l Law Amendme1't (Special Courts) Ordinance (V of 1949) -Validity of trial and conviction-F\tncla.>nental rights to equality of laws and against conviction nnrler ex post facto law- Scope of Arts.14 and 20-Integration of States and Vindhwi Pradesh Ordinances, effect of.

The appellants, who were during the relevant period, the

~Iiuister for Industries and Secretary to the Government respectively of the State of Vindbya Pradesh, were tried by a Special Judge under the Vindhya Pradesh Criminal Law Amendment (Special Courts) Ordinance (No. V of 1949) for charges under ss. 120-B, 16l, 465 and 466 of the Indian Penal Code as adapted by the Vindhya Pradesh Ordinance No. XLV III of 1949, the facts alleged against them being that they entered into a conspiracy in February, 1949, at Rewa to obtain illegal gratification for revoking a previous Government Order and in pursuance of that conspiracy the second appellant domanded such gratification on 8th March, 1949, at Rewa and the first appellant received Rs. 25,000 towards it on the 11th April, 1949, at New Delhi and forged certain documents purporting to be official orders.

They were acquitted by the Special Judge but on appeal the first appellant was convicted by the Judicial Commissioner 011 all t.he charges and the second

•ppellanl; on the clrnrges under ss. 120-13 and 161 of the Indian

• •

8.C.R.

SUPREiVIE COURT REPOHTS 1189

Penal Code.

Tqe validity of the trial and convictions was cha!- 1963 longed on appeal to the Supreme Court inter alia on the ground that they contrnvenecl arts. 14 and 20 of the Constitution and on Rao Shiv the ground that no appeal lay to the Judicial Commissioner from Bahadur Singh the order of the Special Judge. and Another

Held (i) that, as s. 5 (2) of the Vindbya Pradesh Ordinance, Th ;; t if

1949. provided that the provisions of the Criminal Procedure Code v d~ ~·~ h shall apply to the proceedings of a Special Court and that the '" ya ra

Special Judge shall be deemed to be a court of session, the normal right of appeal provided by s. 410 ors. 417, as the case may be, of the Criminal Procedure Code must be taken to have been expressly provided by reference, and the order of the Special Judge was appealable to the Judicial Commissioner.

Attorney-General v. Herman James Sillem (11 H. L. C. 704) distinguished.

(ii) That the trial of the appellants did not contravene art.14 of the Constitution inasmuch as in the Vindbya Pradesh Criminal Procedure Code las amended) which was in force at the commencement of the trial (namely 2nd December, 1949) there was no provision requiring all trials before Courts of Sessions to be either by jury or with the aid of assessors, and the fact that the entire Criminal Procedure Code including s. 268 thereof was extended to Vindbya Pradesh on the 16th April, 1950. by the Part C States (Laws) Act, 1950, could not affect the validity of the trial after that date as s. 4 of the said Act provides that the repeal of the earlier law by that Act shall not affect pending proceedings, and pending proceedings being a class in themselves, a provision saving such proceedings could not contravene art. 14.

Syed Qasim Razvi v. State of Hyderabad ([1952] S.C.R. 710) referred to.

(iii) The prohibition contained in art. 20 of the Constitution against convictions and subjections to penalty under ex post facto laws is not confined in its operation to post-Constitution laws but applies also to ex post facto laws passed before the Constitution in their application to pending proceedings. [The difference between Indian and American law in this respect pointed out.]

(iv) Article 20, however, prohibits only conviction or sentence under an ex post facto law, and not the trial thereof.

Such trial under a procedure different from what obtained at the time of the offence or by a court different from that which had co npetence al that time cannot ipso facto be held to be unconstitutional.

(v) The expression" law in force" in art. 20 means a law which was in fact in existence and in operation at the time of the co1nmission of the offanoe (or, in other words, the the11 e:-dsting

iii$

' •

1953 law) and does not include a law which by subsequent legislation bas to he deemed to have been in force •t that tii:ne.

11 h ""d Shsfr 1

(vi) Though the charges against the appellants were specifia a ur 1ngi ff 0' d A th cally framed with reference lo the o ence under rdmance an no "e'' No. XLVIIIof 1949, as the acts charged as offencesd1dnot become Tl :i 1 such only hy virtue al the said Ordinance and as they were offenv. 'h" Pa' dof h ces even under the law which prevailed at the time when the acts m" '1" ' 0 " ' d th Id t b d d t' f were committe , ey cou no e regar e as conv1c ions or violation of a law which was not in force at the time of the commission of the acts charged.

(vii) By virtue of the Orders of the Regent of Rewa of 1921 and 1922, the Indian Penal Code and the Criminal Procedure Code with the necessary adaptations were in force in the Rewa State and either became extended to tho 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 that State by virtue of the principle laid down in 11fa.yor of Lyons v. East India Co. (1 M.I.A. 175), and were the penal law in force in the relevant area when the acts were committed.

(viii) The amendment of the definition of "public servant" in s. 21 of the Penal Code, made by Ordinance No. XLVIII of 1949 brought about no substantial change in the position of the first appellant as a public servant.

(ix) The Ruler of the Rewa State had prior to 1947 the authority to pass extra.territorial laws relating to offences committed by his own subjects and vesting in his own courts the power to try them, that power was not in any way curtailed either by the integration covenant or the Instrument of Accession, and ss. 3 and 4 of the Indian Penal Code and s. 188 of the Criminal Procedure Code, at least in so far as they affected the subjects and courts of the State, were \vi thin the legislative competence of the State.

(x) The conviction of the appell•nts in respect of all the offences with which they were charged including the extra-territorial offence said to have been committed by the first a.ppellant at New Delhi was not illegal under art. 220 on the ground that the conviction was under an ex z)ost facto la'\\'.

CRUUNAL

APPELLATE

JURISDICTION: Criminal Appeal No. 7 of 1951. Appeal under article 134 (l)(c) of the Constitution of India from the Judgment and Order dated the 10th March, 1951, of the Court of the .Judicial Commissioner, Vindhyft Pradesh, Rewa, in Criminal Appeal No. 81. of 1950, arising out of the Judgment and Order dated the 26th July, 1950, of the Court of Special Judge. Rewa, in Criminal Case No, l ()f 1949,

G. S. Pathp, k (K. B. Asthana, with him), for the appellant No. 1.

K. B. Asthana, for appellant No. 2.

M. G. Setalvad, Attorney-General for India, (G. N.

Joshi, with him), for the respondent.

1953. May 22.

The Judgment of the dell vered by

Court was

JAGANNADHADASJ.-This is an appeal against the judgment of the Judicial Commissioner of Vindhya Pradesh dated 10th March, 1951, by leave granted under article 134( 1) ( c) of the Constitution. The first and the second appellants 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 as follows : In the State of Panna (one of the component units of the United State of Vindhya Pradesh) there are certain diamond mines. By an agreement dated the 1st of August, 1936, between the Panna Dur bar on the one part and the Panna 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 ofVindhya 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 Xt1gindils 1Iehta, a

• •

196J

Rao Shiv Bahadhur Singh

and Another

The State of V indhya Pradesl~.

J agannadh.00.

• •

1963 representative of the Panna Diamond fining Syndi- . cate, and that later on, on 11th April, 1949, the first

B :";

81 ~" h appellant, in fact, received a sum of Rs. 25,000 to-

:n~ ~:wt~::~ wards it at the Constitution House in New Delhi and v. forged certain documents purporting to be orders The State of passed in official capacity and intended to confer some Vindhya Pradesh. advantages or benefits on the Panna Diamond Mining -- Syndicate.

J agannadhadas J.

On these allegations the two appellants were charged for criminal conspiracy and for the taking of illegal gratification by a public servant for doing an official act and for the commission of forgery in connection therewith.

The charges were under sections 120-B, 161, 4n5 and 466, Indian Penal Code, as adapted by the Vindhya Pradesh Ordinance No.

XLVIII of 1949, and the trial was held by a Special Judge under t, he Vindhya Pradesh Criminal Law Amendment (Special Court) Ordinance No. V of 1949.

At the trial both the appellants were acquitted. The State filed an appeal to the Judicial Commissioner against the same whereupon both were convicted under sections 120-B and 161, Indian Penal Code (as adapted). In addition, the first, appellant was convicted under sections 465 and 466, Indian Penal Code (as adapted). He was sentenced 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. 'fhe question raised depends 011 a construction 1953 of the provisions of the Vindhya PradeKh Criminal Law Ra Sh.

Amendment (Special Court) Ordinance No. V of 1949 Bahad:r ;;~•uh dated 2nd December, 1949. By section 2 thereof the and Another Vindhya Pradesh Government was given the power by v. notification to constitute Special Courts of criminal .. 2'he Stat• of jurisdiction within the State and by section 3 to hndhya Pradesh. appoint a Special Judge to preside J)ver the Special - C B 4 h Q b • d Jagannadhadas ourt. y sect10n . t e overnment was ant or1se J. to issue notifications from time to time allotting cases for trial by the Special Judge in respect of charges for offences specified 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 Speci:.l 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 of Session trying cases without a Jury within the local limits of the High Court's jurisdictions."

The argument oflearned counsel for the appellants is that section 6 above quoted provides only for the powers of the High Court on appeal preferred to it, but that there is no provision at i:tll conferring on an aggrieved party a right of appeal from

• •

1953 the judgment and order of the Sp<icial Judge to

R Sh . the High Court. It is contended that the absence ao iv • l Bahadur Singh ?f a nght f appea may be a lacuna, bll:t tht and Another masmuch as rt has not been expressly provided, rt

v. cannot be implied from the fact that a provision has _The State of been made for the exercise of powers by the appellate VindhyaPradesh court. It is conceded that this line of argument, if

J -; h d accepted, would .result in there being no appeal even

agan";. " as as against a conviction. But it is urged that it is the inevitable consequence of the lacuna. It appears however on careful consideration that no such lacuna exists and that sub-section (2) of section 5 of the Vindhya Pradesh Ordinance reasonably construed is an express provision conferring 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 before it and not all the provisions which are connected with or related to those proceedings. There is, in our opinion, no warrant for putting such a limited construction on this sub-section. The only limitation on the application of the provisions of the Cl'iminal Procedure Code to the

• • •

proceedings of the Special Court is the one arising from J9b3 the existence of any inconsistent provisions in the R

S .

Ordinace and not with reference to the conduct of t?e Bah:U.:, ;;,, gh proceedmgs before that very court. Once the Spemal and Anothe~ Court is to be deemed a Court of Session the normal v. right of appeal provided by section 410 or section 417 . The State of as the case may be, mnst be taken to have been VindhyaPradesl" expressly provided by reference and not as arising by J - ' ] ' agannadhadas mere imp wat1on.

Learned counsel strongly relied on Attorney-Genera.l

v. Herman James Sillem(1) 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 procedurf' 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, it is incumbent on the court to avoid a construction, if reasonably permissible on the language, which would render a part of the statute devoid of any meaning or application. The construction urged for the appellant renders section 6 futile and leaves even a convicted person without appeal. We have no hesitation in rejecting it.

Out of the constitutional points raised, that which relates to the alleged violation of article 14 has no substance. In reliance on Lakshmandas Ahuja's case(') it was sought to be argued that though the trial in this case under Ordinance No. V of 1949 related to offences committed prior to the commencement of the Constitution, the continuance thereof under the special procedure prescribed by the Ordinance was discriminatory and hence unconstitutional. It is to be noticed that the trial commenced on 2nd December, 1949, the acquittal by the Sessions Judge was on 26th July, 1950, and the conviction by the Judicial Commissioner on appeal therefrom was on 10th March, 1~51. In the

(1) 10 H, L. Cas. 704; It E. R. 1200,

(2) [1952] S.C.R. 710.

• •

T9S3 light, however, of the later decision of the Supreme

Rao Shiv Court in Syed Qasim Razvi v. The 8tcite of Hyderabad('), s .. hadur Singli it was recognised that this point was unsubstantial, and Anoth,,·. unless some material prejudice in the matter of prov. cedure was shown.

In this context the learned J'he State 0!

Attorney-General brought to our notice that even Vindhya Pradesh. before the Criminal Law Amendment (Special Court)

Jagoi;;:;,, hadas Ordinance No. V of 1949, dated 2nd December, 1949,

 J. came into force there was in operation the Code of Criminal Procedure Adaptation (Amendment) Ordinance No. XXVIII ofl949 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. XXX of 1950 [Part C States (Laws) Act, 1950], whereby Acts and Ordinances specified in the Schedule to the Merged States (Laws) Act, 1949 (LIX of

1949) were 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 l!xtent 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

(1) [1952] S. C. R. 71<"

of any offence.committed against any such law, or (c) 1963 any investigation, legal proceeding or remedy in res- R sh pect of any such penalty, forfeiture or punishment, Baha~:r ; ngh and any such investigation, legal proceeding or remedy and Another may be instituted, continued or enforced, and any such v. penalty, forfeiture or punishment may be imposed, as .The State 0! if this Act had not been passed.'' It is to be noticed Vindhya Pradesh. that the saving provision applies equally to proceedings Jagannadhadas previously commenced and then pending, whether J. before the special court or the ordinary 0ourt, and that therefore in respect of two persons equally situated in this behalf, one under trial by the ordinary court and the other by the special court, the position continues what it was before, i.e., the continuance of trial does not involve any substantially discriminatory and prejudicial procedure. Learned counsel however attempted to argue that the very saving clause was a discriminatory provision and hence unconstitutional and invalid. But there is no reason, \rhy pending proceedings cannot be treated by the legislature as a class by themselves having regard to the exigencies of the situation which such pendency itself calls for.

There can arise no question as to such a saving provision infringing article 14 so long as no scope is left for any further discrimination inter se as between persons affected by such pending matters.

The next and the only serious question that arises in this case is with reference to the 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 llth September, 1949, while the offences themselves are said to have been committed in the months of Fehrnary, March and April, 1949, i.e., months prior to the Ordinance. It is nrged thernfore that the convictions in this case which were after t lw Corrnhtution r"nie. into fon'u

J.).i

• •

1198 Sl!PREME COURT REPORTS [1953]

1953 are in respect of an ex post facto law creiiting offences after the commission of the acts charged as such 1-tao Shiv llahadur Singh offences and hence unconstitutional. This contention

and Another raises two important questions, vfa., (1) the proper

v. construction of article 20 of the Constitution, and The State 01 (2) whether the various acts in respect of which the Viudhya I'radeBh. appellants were convicted constituted offences in this

Jagannruthadas area only from the date when Ordinance No. XLVIII J. of 1949 was passed or were already so prior thereto.

Article 20(1) of the Constitution is as follows:

"No person shall be convicted of any offence except for violation of a law in force at the time of the commission 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 ex post facto laws. The principle underlying such prohibition has been very elaborately discussed and pointed out in the very learned judgment of Justice 'Villes in the well known case of Phillips v. Eyre(') and also by the Supreme Court of U. S. A. in Calder v. Bull (2). 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 ea: 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 statute by any means permits it.

In the American system, however, such ex post facto laws are themselves rendered invalid by virtue of article l, sections ll and 10 of its Constitution. It is contended by the learned Attorney-Genera! that article 20 of the Constitution

(1) (1870) 6Q.B.D. 1, at 13 and 25.

(2) 3 Dallas 386; I Lav.', Edition 64S at 6491

was meant t<> bring about nothing more than the i:i.;3 invalidity of such ex post facto laws in the post-Con- . t't t' . d b h h I'd' f h C Raa Sim• s u on per10 ut t at t e va 1 1ty o t e preon- JJahadur Sinylt stitut10n laws in this behalf was not intended to be and Another affected in any way. The case in Keshavan 1vladhavan v. 11l enon v. The 8tate of Bombay ( 1) has been relied on to 2'he state of show that the fundamental rights guaranteed under Vindhya Pradesh the Constitution have no retrospective operation, and J -dhad that the invalidity of laws brought about by article 13 agan~;.

( 1) of the Constitution relates only to the future operation of the pre-Constitution laws which are in violation of the fundamental rights. On this footing it was argued that even on the assumption of the convictions in this case being in respect of new offences created by Ordinance No. XLVIII of 1949 after the commission of the offences charged, 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. Sections9(3) and 10 of article 1 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 fa.eta laws. The prohibition under the article is not confined to the passing or the validity of the law, but extends to the conviction pr 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 certain cases

(1) [I95I] S.C. R. 2'8.

SUPREME COURT REPORTS [1953] .

1953 result from acts and situations which.had their commencement in the pre-Constitution period. In The Rao Shlv CJ Bahadur Singh Queen v. St. Mary Whitechapel (1) Lord Denman . . and Another pointed out that a statute which in its direct operation v. is prospective cannot properly be ealled a retrospeetive The State of statute because a part of the requisites for its action is Vindhya Prade•h. drawn from a time antecedent to its passing. The

.Jagannadhadas general principle therefore that the fundamental rights J. 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 Jaws whether the same was a post-Constitution law or I!- pre- Constitution law.

That such is the intendment of the wording used in article 20 ( l) 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 prohibitioE of double jeopardy applies only when both the occasions therefor 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 himS<Jlf, if after the Constitution he case is pending.

In this context it is necessary to notice that what is prohibited under article 20 is only conviction or sentence under an ex post fatto law and not the trial thereof.

Such trial under a procedure different from what obtained at the time of the commission of the offence or by a court different from that which had competence at the time cannot ipso facto be held to be unconstitutional.

A person accused of the commission of an offence has no fundamntal right to trial by a particular court or by a particular procedn 1e, except in so far as any constitutional objt:iction by way of discrimination or the violation of any other fundamental right may be involved.

In this connection our attent.ion has been drawn to the fact that the Vindhya Pradesh Ordinance XLVIII of 1949, though enacted on 11th September,

(1) u6 E.H. 8n at 814.

\ •

s.C.R.

SUPREME COURT REPOR'rs 1201

1949, i.e., aftr the alleged offences were committed, 1963 was in terms made retrospective by section 2 of the Rao Shiv said Ordinance which says that the Act " shall be Bahadur Singh deemed to have been in force in Vindhya Pradesh and Another from the 9th day of August, 1948," a date long prior v. to the date of the commission of the offonces. It was . 2'he State 0! accordingly suggested that since such a law at the Vindhya Pradesh. time when it was passed was a valid law and since this Jayannadluula• law had the effect of bringing this Ordinance into J. force from 9th August, 1949, it cannot be said that the convictions are not 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 cannot possibly be adopted. It cannot therefore be doubted that the phrase "law in force" as used in article 20 must be understood in its natural sense as being the law in fact in existence and in operation a.t 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 :>ppellants are able to substantiate their contention that the acts charged as offences in this case have become such only by virtue of Ordinance No. XL VIII of 1949 which has admittedly been passed subsequent to the commission thereof, then they would be entitled to the benefit of article 20 of

. i202

SUPREME COURT REPORTS [1953)

1953 the Constitution and to have their oonvictions set

R Sh . aside. This leads to an examination of the relevant <to iv • • ] Bahadur Singh pre-ex1stmg aw.

and Anather But before taking up that examination, it is conv. venient to deal with a. contention which has been rev ~~' s; ie; J h peatedly pressed on us, viz., that the validity of the

in ya ra " convictions in this case cannot be upheld on a con-

Jagannadha<ias sideration 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 pre-existing • law.

This contention is, however, without any substance. An examination of the pre-existing state of law in this behalf as on the date of the commission of the offence is not for the purpose of converting the convictions under Ordinance No. XLVIII of 1949 into those under the previous Jaw. The convictions in this case are clearly and legally referable only to Ordinance No. XLVIII of 1949, which was the law applicable to the offence at the tir.ae of the commission thereof on account of the retrospective operation validly given to that law by section 2 of the Ordinance.

It is only for the purpose of considering the constitutional validity of those convictions that the factual position as regards the previous law in this behalf becomes necessary to be examined. This is a question which arises on the contention of the appellants themselves, and is not an objection to the frame of the charge or the legality of the conviction othe1'- wise than on the footing of constitutional invalidity.

Nor is there any question of prejudice involved, since that question has been raised on behalf of the appellants in the trial court itself, and the burden of making out the facts requisite fur the constitutional invalidity of the convictions is on them.

The argument that on the very terms of 0l'Clinance 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 8ections 2 and 3 (I) of the said Ordinance, which run as follows:

• •

S.C.R.

SUPREME COUitT REPOitTS 1203

1953 Section 2: !'The Indian Penal Code as in force generally in the Provinces of India immediately before the commencement of this Ordinance shall applv, and B 1Bado Sh3fo 1 . . . .

J a 1a ur zng 1 shall be 111 force 111 V 111dhya Pradesh, subject to the and Anothc; adaptation and modifications set out in the Schedule, v. and the said Code as so applied shall be deemed to The State of have been in force in Vindhya Pradesh from the 9th Vindhya PradCBli. 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 between 9th August, 1948, and 11th September, 1949, on which date Ordinance No. XL VIII of 1949 came into force must be taken to be a 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 was anything different from what wa.s 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 set-up at the relevant period ancl the legiRlative authorityfunctioning

, J agannadhadaa

1204 SUPRENIE COVRT REPOR'l'S [1953]

1953 in that set-up, it becomes necessary. to have a

Rao Shiv correct appreciation of the events which resulted in BahadurSinuh bringing about a United State of Vindhya Pradesh.

and Another The State ofVindhya Pradesh consists of as many "· as 35 pre-existing native States known as Bundelkhand ,,, Tdhle 81P01'a0f 1 and Baghhelkand States of which the State of Rewa •in iya '" e.n 1 h 1 .

I d' 1 f was apparent y t e argest umt. mme iate y a ter

JauannarlhadaB the passing of the Indian Independence Act of 1947

J, which by virtue of section 7 thereof resulted in the lapse of the suzerainty of the British Government in India, these various States executed in favour of the Government of India Instruments of Accession under section 6 of the Government of India Act in accordance with the form which is found at pages 165 and 169 of the White Paper on Indian States issued by the Government of India in March 1951.

At about the • same time they executed also standstill agreements as per form given at page 173 of the W'hite Paper.

Shortly thereafter and in pursuance of the policy of the Government of India all these 35 States executed, with the concurrence of the Government of India, an inter se Covenant dated 18th March, 1948, for the establishment of a UnitedState ofVindhyaPradesh comprising the territories of these 35 States with 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 ofVindhya 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. j\1eanwhile, however, it appears to have

\ •

been thought.expedient that a fresh Instrument of 1953 Accession shoul~ be executed b.y the Rajpramukh on Rao Shiv behalf of the Umted State of Vmdhya Pradesh replac. Bahadur Singh ing the individual Instruments of Accession which and Another were executed in the months of August, September, v.

October and Novembr, 1947. Consequently a fres? Vi:::::v:;;:;; sh.

Instrument of Access10n was executed by the RaJpramukh on behalf of the United State of Vindhya Jagannadhadas Pradesh on the 20th of July, 1948, and was accepted J. 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 abrogated all other constitutional provisions inconsistent therewith which were then in force in this State.

These arrangements brought about an integrated United State of Vindhya Pradesh within the frame work vf the Dominion of India but only by way of accession. Further steps, however, had the effect of merging these United States as part of the territory of India. It is unnecessary to notice those steps in detail, as they fall beyond the period with which we ii.re concerned for the present purpose.

1953 It is against this background of events constituting the integration of these various ruler S'tates into the B a; Sh;~ z "Cnited State of Vindhya Pradesh within the Union of

;,,',; ;;,0,;~;' India by accession thereto that the question as to what v. was the criminal law in force by February, March and

The State of April, 1949, has got to be judged. From the above Vindhya P'"desh. narration it will be noticed that at the relevant period

J ---; it was the Government of the United State of Vindhya agannadaadas p d h 't t d b h ' t t' C J ra es consti u e y t e inter se m egra 10n ove- . nant dated the 18th March, 1948, that was functioning under the authority of the Rajpramukh of Vindhya Pradesh and subject to the Instrument of Accession with the 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 "Cnited 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(').

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 as to be applicable to the whole of Vindhya Pradesh, Provided 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."

(1) 1 M.I.A. 175, at 2701 271.

' • •

This Ordinnce extended to the whole of Vindhya 19.53 Pradesh, and was to come into force with effect from the 9th ?f August, 1948, by virtue of section 1 there?f. Ba:au~,~ngh The Ordmance was amended later by another Ordmand Another ance No. XX of 1949 which deleted from section 2 v. of the previous Ordinance the words "by publication The State of in the Rewa Raj Gazette". The effect of these two VindhyaPradesh.

Ordinances, so far as we are concerned, was to extend J --:; h d to the entire State of Vindhya Pradesh the criminal agan";_

0 as 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 8tate, in the letter and in the spirit with due adaptation to local conditions.'' It is not disputed that this continued to be the position so far as Rewa State was concerned until the United State ofVindhya Pradesh was formed. It follows that the Indian Penal Code and the Code of Criminal Procedure with necessary adaptations were bro\jght into operation in the entire Pnited State of Vindhya Pradesh shortly after the introduction of the integrated administration under the Rajpramukh.

It has been urged, however, that though this may have been the intention, the intention did not become operative for reasons to be presently stated. Section 2 of Ordinance No. IV of 1948 while extending the laws of Rewa State to the rest of Vindhya Pradesh refers to the publication of such laws in the Rewa Gazette as

<t requisite therefor, and it is pointed out that the Rewa Gazette itself came into existence only in October 1930 ( vide page 386 of the printed paper book), whereas the Penal Code and the Criminal Procedure Code were brought into operation in the Rewa State in 1921 and

1922. lt is also pointed out that the deletion of the

1953 requirement of previous publication in the Rewa Gazette by Ordinance No. XX of 1949 caine into oper- Rao Shiv . 1 h th t 0 d' bl' j d , h Bahadu,· Singh at10n on y w en a r mance was pu ts ie m t e and Another Vindhya Pradesh Gazette, i.e., on the 15th May, 1949,

v. sometime after the commission of the offence in this

. The Slate vf case. To substantiate the view that only such of the Vmdhya Prade8/i. Rewa laws which were previously published in the

J - Rewa Gazette were understood as having been origiagmmadhadas 11 t d d t v dh p d h b 0 d' N J na y ex en e o m ya ra es y r mance o. lV 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 ;\Iarch, 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 in this argument that in respect of the varis Rewa State 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 f acie inclined to accept this view and to think that tho Indian Penal Code as in force in Rewa became extended to V indhya 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 1953 force in the Rew'a portion of the United State ofVindhya R

S' . . ao 1iiv Pradesh, as the Vmdhya Pradesh law therefor, on the Bahadar Singh principle recognised in 1ffoyor of Lyons v. East India and Another.

Company (1), that on change of sovereignty over an v. inhabited territory the pre-existing laws continue to .1'he Staie of be in force until duly altered. Since in the present Vindhya Prad,, h. case we are concerned with offences committed in rela- Jagannadhadas tion to the Rewa State portion of Vindhya Pra- J. desh, there can be no reasonable difficulty in holding that the criminal law of Itewa State, i.e., the lndian Penal Code and the Criminal Procedure Code with adaptations mutatis mutandis, was the relevant law for our present purpose by the date of integrated administration, viz., the 9th August, 194.8.

Now the subsequent alterations therein by Ordinances of the Rajpramukh may be shortly noticed. So far as the substantive penal law is concerned, there was the Anti-corruption Ordinance o. XII of 1948 dated the 16th December, 1948, and the Indian Penal Code (Application to Vindhya Pradesh) Ordinance No.

XLVIII of 1949 dated the 11th September, 1949. The former being prior to the dates of commission of the offences in the present case does not require any further notice. So far as the Criminal Procedure Code is concerned, there were two Ordinances: ( 1) the Criminal Procedure Code Adaptation Ordinance .N"o. XV of 1948 dated the 31st December, 1948, and (2) the Criminal Procedure Code Adaptation (Amendment) Ordinance

u. XXVII of 1949 dated the 3rd May, 1949. In view 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 rnutatis mutandis were in force in Itewa 8tate and either became extended to the entire Vindhya Pradesh State from the 9th August, 1948, by Ordinance :N"u. IV of 1948 or continued tu be in force in the ltcwa portion ofVindhya Pratlesh State

hy virtue of the principle in "vlayor of Lyons' case ( 1) it is prima facie correct to say that the penal law in force

(r) 1 M. I. A. 175 •

SUPREME COURT REPOR.TS (1953]

1953 in the relevant area was substantially , the same both before and after the above-mentioned amendments Rao Shiv d b h R . kh Bahadur Singh ma e y t e aJprarnu .

and Another It is urged however that in two important respects

v. relevant for our present. purpose there is a difference.

Vi~~;, v~

1 ;:01,, h. It is poine.d out hat thre is an amendment. as regards _ the defimt10n of "public servant" by Ordmance No.

Jagannadhadas XL VIII of 1949. It is also urged that sections 3 and J. 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 this behalf at the relevant times. The points thus raised assume importance since the cha.rges against the fiIBt 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, Ind, an 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-Ernperor v. Sibnath Banerji(') 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 p:1ssing of Ordinance No. XL VIII of 1H49 and on the view that the Indian Penal Code with necess0-ry ad:1ptations inutatis rnutandis was in force at least in the Rewa portion of Vindhya Pmdesh (if not in the entirety of VindhyaPradesh) the first :1ppellant was a public servant

(r) (1945] F. C.R. 195 at 222.

1953 as defined in section 21, Indian Penal Code, as adapted.

The amendment of the said section bro112:ht about there- ,_, Ilao Shiv fore no substantial change in the position of the first Bahadur Singh appellant. It has been faintly suggested that, even so, and Another under the pre-existing law the definition of public serv. vant could have reference only to an officer of the . The State of Rewa State, and that the change brought about by VnidhyaPmdesh.

Ordinance No. XL VIII of 1949 made only the Minister JagannadhadM of Vindhya Pradesh State a public servant. This argu- .1. ment is fallacious. It is implicit in the continuance of Rewa law after integration that from the moment of such continuance it became the Vindhya Pradesh law for the Rewa portion of Vindhya Pradesh territory with the requisite implied adaptation consonant to the new set-up. There is therefore no substance in the argument that the amendment of section 21, Indian Penal Code, by Ordinance No. XL VIII of 1949 brought about any change in the situation of the first appellant as a public servant.

The furthAr qirnstion that remains to be considered is whether under the Vindhya 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 rnutatis mutandis these sections can be held to have been validly in force in Vindhya Pradesh at thA 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 extra-territorial legislation, and that every sovereign legislative authority has the power to pass such laws also. [See Macleod

• •

SUPR.EME COURT REPORTS [1953]

v. Attorney-General for New South , Wales(')].

In the present case we are concerned only with that por- Rao Shiv tion of the releYant extra-territorial law which renders Bahadur Singh

and Another an act committed hy a subject of the State outside the

v. limits of the State •tn offence triable by the courts of 2'he State of the State. In 1he course of the arguments it has Vindhya Pradesh. been suggested that to that limited extent no question

 -- of extra-territori::dity of the relevant legislation arises.

Jagan; adhodas But the concept of extra-territorial legislation appears

 to comprehend such cases also, if the passages relied on before us from Pitt-Gobbet's International Law, 5th Edition, at page 216 as also at pages 225 and 226paragraphs l.01 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 extent that the suzerain power assumed to itself any function of such internal sovereignty either on specific occasions, or generally but for specified and limited purposes.

In their relation with the rulers of the native States, the suzerain British power acted on the juristic theory propounded by Sir Henry Maine that "sovereignty is divisible, though independence is not"-See Ilbert's Government of India, page 425-a theory accepted in the Butler Committee Report on Indian States (1928-29) at page 25, paragraph 44. The pitssages at pages 398, 399 and 426 of Ilbert's Government; of India would show that what may have been left of internal sovereignty <; o a particular ruler may in exceptional mises be nothing more than titular.

The general position of these Native States in India prior to 15th August, 194 7, appears fairly clearly from certain instructive passages at pages 422 and 423 of Ilbert and is correlative

(r) [1891] A.C. 455,

to the actual a.xercise of British jurisdiction within those States as appears from the following passages:-

• •

195-3

J{ao Shiv Bahadur Singh

and Another v.

The State of

"In point of fact the jurisdiction of the Governor- General in Council within the territories of Native States is 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,

V indhya Pradesh.

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 9ver 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 at pages 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, 11nd 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 C11pitulations a, nd agreements with foreign

Jagannadhadas J.

• •

IP63 non-Christian nations, these distinctiol'.l$ are absent in

Hao Shiv the case of nat!ve nd!an sbjects ?f er Majesty. Te Bahadur 8ingh systems of native Justice, if not s1mtlar to those m

and Anot11e; British territory, are more or less assimilated, and prov. vided that the trial of native Indian subjects by the

The State of ordinary tribunals of the States, whose laws thev have

Vindh!fn Praae., h. offended, is supervised by the British agent, the

Jnryn,,:, dhana general rule is to leave to the Native States jurisd:ction

 J. 8 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 the political agent is satisfied that the crime can be properly tried in the courts of the Native State. The powers of the sovereigns of the States, in respect of the trial of native Indian subjects, have been generally classified. Some chiefs can try any person, whether their own or a native Indian subject, for a capital offence without express permission; others can only try a native Indian subject for such an offence with permission.; and others, again, cannot pass a final sentence of death without the confirmation of Government to it."

These passages, while showing that the extent of the exercise of internal sovereignty by each of these rulers in actual practice, is a matter for evidence, when called in quest.ion, indicate that full jurisdiction over the rulers' own subjects was never denied but generally conceded, except where a sentence of death was involved. There is therefore no reason at all to think that the rulers had no authority to pass laws binding their own subjects and regulating their own courts in respect of acts committed outside their State assuming such laws to be extra-territorial. In this context an old treaty of 1813 between Rewa State and the British Government and a fairly recent judgment 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 i\itchison's Treaties, ngagements and 19~3 Sanads. Article 6 thereof which is relied on only pro- R . 'd f il' . ,. th

. G ,. 11 aoShw v1 es ac 1t1es ror e suzeram overnment to 10 ow Bahadur Singh and pursue into Rewa State, offenders who having and Another committed offences in British India escape away into v. the State. This does not negative the authority of . The State of the Rewa State to enact legislation concerning its own Vindhya Prad .. h. subjects when they commit such oences outside the Jagannadhad"> State. 1945 Rewa Law Reports 84 1s no doubt a case ;1, 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 State~ had prior to 1947, the authority to pass extra-territorial laws relating to offences committed 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. XLVIII of 1949 and XXVIII of 1949 respectively, must fail as he had no such authority for extra-territorial legislation with reierence to the basic covenants from which his authority was derived. These basic covenants are as aheady above shown the inter se integration agreement

• •

lJJJ dated 18th March, 1948, executed by aJl the rulers of

Rao Shiv the component States .of Vindhya Pradesh and the /Jahadnr Singh Instrument of Access10n da, ted 20th July, 1948, and Another executed by the Rajpramukh in favour of the v.

Dominion of India. Under the inter se integration . The State of agreement and by article IX, clause (3) thereof, ViitdhyaPradesh. the Rajpramukh was vested with the power to

Jagannadhadas make and promulgate Ordinances for the peace

.f. and good government of the United State of Vindhya Pradesh or of any part thereof. Under the Instrument of Accession and by clause (3) thereof the Rajpramukh accepted all matters enumerated in Lists I and III of the Seventh Schedule to the Government of India Act, 1935, as matters in respect of which the Dominion Legislature may make laws for the United State. It has been strenuously argued before us that in view of these provisions the authority of the Rajpramukh for legislation was in substance reduced to the powers of the Provincial Legislature within the framework of the

Constitution of India as it then was.

Section 6, subsection (1), of the Indian Independence Act and section 99(2) as amended are relied on to show that the Provincial Legislature has no power to make extra-territorial laws. It is accordingly argued that the Rajpramukh had no power at least after the execution of the Instl'ument of Accession to amend or adapt the Indian Penal Code or the Criminal Procedure Code so as to bring into opera ti on 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 Pominion of India enumerates the two 19.53 under separate categories by clauses (a) and (b).

Sub- Rao Shiv section (2) of section 6 specifically provided that, Bahadur Singh "An Instrument of Accession shall specify the and Another matters which the Ruler accepts as matters with resh v. pect to which the Federal Legislature may make laws v;'!:a: ste ;1 h for his State, and the limitations, if any, to which the

Y~._:_" " power of the Federal Legislature to make laws for his Jagannadhadas State, and the exercise of the executive authority of J. 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 the enumerated items as Lists I and III which may have been a matter of convenience for reference.

On the other hand, the Instrument of Accession in terms states by clause 9 as follows :

"Save as provided by or under this Instrument nothing contained in this Instrument shall affect the exercise of any power, authority and rights.enjoyed by the Rajpramukh or the validity of any law for the

• •

Rao Shiv

time being in force in the United State, or any part thereof."

Bahadur Singh The authority of the Rajpramukh which is referred and Another to in this clause is not only the unfettered legislative

The ;1~1, of authority "to make and promulgate Ordinances for

VindhyaPradesh. the peace and good government of the United States _ or any part thereof" vested in him by Article IX of

Jagannadhadas the integration Covenant dated 18th March, 1948, but J. also that which is vested in him under article VI of the said agreement. This article vests in him "all rights, authority, and jurisdiction belonging to the ruler of each Covenanting State and incidental to the government thereof." There can be no doubt therefore that if, as has been pointed out above, the various Cov. enanting States and in particular the State of Rewa, had the power to pass extra-territorial laws at least to the extent of making certain acts committed 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 cmtailed 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 .

. '

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As regards t, he amendments in th\l Criminal Proced- 1953 ure Code brought about .by Ordinances Nos. XV of Rao Shiv 1948 dated the 31st December, 1948, and XXVII of Bahad'" Singh 1949 dated the 3rd May, 1949, no detailed consideraand Another tion is necessary in view of what has been held at the v. outset that the constitutional objection under artiv::a~.::~~;{.h. cle 20 does not apply to a change in procedure or change of court. Items 62 and 63 of section 2 of JagannadhadM Ordinance No. XV of 1948 would seem to indicate J. 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 was 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 Orclinance, i.e., 31st December, 1948.

In the result, we hold that ( 1) The appeal to the Judicial Commissioner from the acquittal by the Special Judge was competent; (2) The trial of the appellants under the Vindhya Pradesh Criminal Law Amendment (Special Courts) Ordinance No. V of 1949 is not open to objection under article 14 of the Constitution; (3) The criminal law relating to the offences charged against the appellants at the time of their commission was substantially the same as that which obtained at the time of the convictions and sentences by the appellate court. This was so both in respect of offences committed within the limits of the State of 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 t.he relevant

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1953 time; and (5) Conequent on 3 and 4 ab, ove, the objection to the convictions and sentences of the appellants Rao Shiv under article 20 is not sustainable.

Bahadur Singh

and Another The appeal is accordingly directed to be posted for

"'h 3v. ' consideration whether it is to be heard on the .1. e tateoJ .

Vindhya Pradesh. Il101'ItS.

J a.gannadhadas

Order accordingly.

Agent for the appellants: Rajinder Narain.

Agent for the respondent: G. H. Rajadhyaksha .