Judgment Case ID: 939

Judgment:
minal Appeal No. 158 of 1956. Appeal by special leave from the judgment and order dated February 9	 1955	 of the Calcutta High Court in Criminal Revision No. 282 of 1954	 arising out of the judgment and order dated December 15	 1953	 of the Second Municipal Magistrate	 Calcutta	 in Case No. 2629C of 1952. Feb. 8	 9	 10. section M. Bose	 Advocate General for the State of West Bengal	 A. C. Mitra	 B. Sen	 P. K. Bose and D. Gupta	 for the appellant. Three questions arise for determination in this appeal: (1) whether State is a " person " within the meaning of section 386 of the Calcutta Municipal Act	 1923	 (2) does the Constitution make any change in the principal of prerogative as part of the common law and (3) does article 372 of the Constitution keep the existing law intact	 i. e.	 the law as declared in L. R. 73 1. A. 271 to the effect that the Crown is not bound by any statute unless it is expressly named or unless it can be held to be included by necessary implication. The word " person " has been held not to include the State. [A.I.R. 1954 Punj. 49 ; A.I.R. 57 Punj. 150; A.I.R. 53 Nag. 35 ; A.I.R. 1955 Nag. 177 ; I.L.R. 1953 1 Cal. 355; 62 C.W.N. 561. 33 Pat. 603 takes the contrary view.] If the word " person " included the State	 article 300 of the Constitution would not be 161 necessary. How far the Crown is bound by a Statute not specifically naming it is laid down by the Privy Council in L.R. 73 I.A. 271. The decision of the Madras High Court taking a contrary view in I.L.R. was not cited before the Privy Council and is based upon the wrong assumption that common law changed with the change of legislation. The coming into force of the Constitution does not alter the law as laid down in L.R. 73 I.A. 271	 I.L.R. and I.L.R. Article 372 of the Constitution includes the common law of the land and continues the same after the coming into force of the Constitution. [I.L.R. 	 I.L.R. This common law doctrine of the immunity of the Crown from Statutes not specifically naming it or referring to it by necessary implication is applicable in United States also. ; [52 L. Ed. 82; ; M. C. Setalvad	 Attorney General for India	 R. Ganapathy Iyer	 R. H. Dhebar and T. M. Sen	 for intervener No. 1 The question is whether the ancient rule of English common law declared to be applicable to India by the Privy Council is applicable to the construction of section 386 and it has to be examined as to what was the position before and after the Constitution. The High Court has decided that even before the Constitution the principle did not apply in spite of the Privy Council decision. The statute of 1923 must be con strued in accordance with the rule of interpretation prevailing in 1923. The makers of statute in 1923 did not intend to include State in the word " person ". The decision of the Privy Council was the binding law of the land unless there was legislation abrogating it or taking away its effect. Article 372 of the Constitution actually continues the law as laid down in L.R. 73 I.A. 271. This Article uses the expression " of the law in force in India " and not the words " existing law ". The same expression is used in section 292 of the Government of India Act and was interpreted in There is nothing in the Constitution which takes away the applicability of the rule. There is nothing in 21 162 that rule or in its nature repugnant to any provision of our Constitution. The rule is illustrated in ; and I C.L.R. 406. The rule is applicable to all forms of Governments and is based on the ground of public policy and not merely on the ground of prerogative. ; ; V. K. T. Chari	 Advocate General for Madras and T. M. Sen	 for intervener No. 4. Supported the Advocate General of Bengal. H. M. Seervai	 Advocate General for Maharashtra and R. H. Dhebar	 for intervener No. 5. The word " person " should be given its normal meaning. It does not include the Crown or the State. It would not include the State unless the statute would be meaningless without such inclusion. [L.R. 73 I.A. 271 ; I C.L.R. 406]. By " necessary implication " is meant that without the inclusion of the crown or the State the beneficent purpose of the statute would be wholly frustrated. The consensus of judicial opinion in Bombay has been the same as expressed in L.R. 73 I.A. 271. The rule has nothing to do with forms of Government.[93 L. Ed. 1406]. Indian decisions have uniformly taken this view. [5 Bom. H.C.R. 23 ; I.L.R. I Bom. 213; 36 Bom. L.R. 820; ; I.L.R. 2 All. 196]. I.L.R. accepts the rule but says that it does not apply to taxation. This was a wrongful curtailment of the prerogative. [Halsbury	 Vol. 7	 p. 469	 para 98]. The judgments of the Privy Council delivered before January 26	 1950	 are binding on all courts in India except the Supreme Court and they are binding till the Supreme Court takes a different view. [A.I.R. 1953 Cal. 524; A.I.R. 1955 Nag. 293; Government of India Act	 section 212 provided that the judgments of the Federal Court and of the Privy Council shall be binding and shall be followed. section M. Sikri	 Advocate General of Punjab and D. Gupta	 for intervener No. 2. In pre Constitution statutes the word " person " could include " the Crown " but normally or ordinarily it would not so include. In I.L.R. 1958 Punj. 201 it was held that person " included the State of Punjab and the Union 163 of India. The rule laid down by the Privy Council is equally applicable to a Republic. ; ; 65 L. Ed. 315; ; and ; In A.I.R. 1956 Pat. 91 the State has been held to be a person. G. C. Mathur and C. P. Lal	 for intervener No. 3. Adopted the arguments of the Advocate General of West Bengal and of the Attorney General of India. T. M. Sen	 for intervener No. 6. Adopted the arguments of the Advocate General	 Bengal and the Attorney General of India. N. C. Chatterjee	 Sunil K. Basu and Sukumar Ghose	 for respondents. Section 386 is directed towards maintenance of healthy condition etc. and is a wholesome provision for safeguarding the health of the people by providing for the control of storing houses and for the equality of the stores. The financial aspect	 i. e.	 the recovery of license fees or fine is inconsequential. The prerogative of immunity from the statutes is only available when the State acts as State and not when it descends to trade and business. State is a person. Salmond	 11th Edition	 p. 35	 defines person as an entity capable of rights and duties. It has the power to hold and acquire property ; it can sue and be sued [Article 300 of the Constitution ; 60.Punj. L. R. 546.]. The correct rule of interpretation is that to exempt the State from the operation of a statute there must be express exclusion in favour of the State. [Friedman in The mere fact that the State cannot be sent to jail	 does not indicate that it is not a person. A Corporation is a person. It is the stigma of the conviction that matters and it is not a question of hurting the State financially. ; [1950] S.C.R. 720. A Corporation can be prosecuted even where mens rea or state of mind is concerned. [Paton on Jurisprudence	 2nd Edition	 p. 279]. Sanctions of criminal law should be available against the State for enforcing the law. [72 C. L. R. 409; Willis ' Constitution Law	 p. 37]. State is a person. ; ; I. L. R. [1951] 1 All. 269]. When State engages in trade or commerce	 it must be treated in the same 164 way as ordinary citizens. [A. 1. R. ; A. 1. R. 1956 Pat. 91.] State is not a person only for the purposes of article 14. The doctrine of immunity of States from the operation of its laws cannot be invoked in the present constitutional set up. The rule is based on royal prerogative. ; ; Willis p. 54]. The rule springs from the prerogative that the King can do no wrong. There is no one equivalent to the King now in India and therefore the prerogative does not survive. Law is a scheme of social control and the command of a superior. If the State claims immunity	 it must be exempted by express legislation. Immunity cannot be implied. There has been progressive restriction on the immunity of the State. ; ; ; I.L. R. lays down the correct law. After the coming into force of the Constitution	 the High Courts are not bound by the judgment of the Privy Council. All powers are derived from the Constitution and no immunities can be implied. Even if any immunity can be implied	 then it cannot be invoked in respect of any trading or commercial activity. [5 Bom. H. C. R. Appendix 1 at p. 13; ; ; 90 L. Ed. 326]. The activity carried on by the State in storing food grains etc.	 and distributing them was trading activity and not exercise of Governmental function. The State is bound by necessary implication by the provisions of the Calcutta Municipal Act	 1.923. There are provisions in the Act which expressly exempt the State from their operation. See section 126. section M. Bose in reply. Common law can be amended by legislation. See section 4	 Hindu Succession Act (30 of 1956) and Hindu Adoptions and Maintenance Act (78 of 1956). There is difference between Civil and Criminal liability. [72 C. L. R. 406	 at 409	 424	 425]. The State is not carrying on any trading activity but is acting in the exercise of essential Governmental functions. ; Common law of England was introduced in the Presidency towns by statutes. See Ormond 's Rules of Court; 1. L. R. 61 Cal. 165 H. M. Seervai	 (with the permission of the Court). It is a settled rule that if a word is not a term of art	 you must take the ordinary meaning and not go to technical books. ; ; 90 L. Ed. 396; Halsbury Vol. 7	 p. 221]. section M. Sikri	 (with the permission of the Court) referred to Holdsworth History of the English Law	 ' Vol. 10	 p. 354. August 16. The Judgment of Sinha	 C.J.	 Imam and Shah	 JJ.	 was delivered by Sinha	 C. J. Sarkar and Wanchoo	 JJ.	 delivered separate judgments. SINHA C. J. This appeal by special leave is directed against the judgment and order of the High Court at Calcutta dated February 9	 1955	 whereby that Court	 in its revisional jurisdiction	 set aside an order of acquittal dated December 15	 1953	 passed by the Municipal Magistrate	 Calcutta	 in respect of the prosecution launched by the Corporation of Calcutta	 respondent in this Court	 against the appellant. The relevant facts are these. On July 1	 1952	 the Corporation of Calcutta made an application for summons under section 488 of Bengal Act III of 1923	 which was substituted by West Bengal Act XXXIII of 1951	 against " the Director of Rationing and Distribution representing the Food Department of the Government of West Bengal ". The offence complained of was " for using or permitting to be used premises No. 259	 Chitpur Road	 Upper	 for the purpose of storing rice etc.	 under the provisions of the Bengal Rationing Order	 1943	 without a licence under section 386 for the year	 1951 52	 corresponding section 437 of the C.M.C. Act	 1951 ". Section 386(1)(a) of the Calcutta Municipal Act is in these terms: 		 No person shall use or permit to be used any premises for any of the following purposes without or otherwise than in conformity with the terms of a licence granted by the Corporation in this behalf	 namely	 any of the purposes specified in Schedule XIX 166 Item 8 of the said Schedule is " storing	 packing	 pressing	 cleansing	 preparing or manufacturing	 by any process whatever	 any of the following articles and the articles mentioned include rice	 flour	 etc. The facts alleged by the prosecution were not denied in behalf of the Department	 which was in the position of the accused	 but it was contended by way of a preliminary objection that the prosecution was not maintainable in law. After hearing arguments for the parties the learned trial Magistrate passed an order acquitting the accused relying upon a decision of the Calcutta High Court in the case of The Corporation of Calcutta vs Sub Postmaster	 Dharamtala Post Office(1)	 holding that the provisions of section 386 of the Act	 neither in terms nor by necessary implication	 bound the Government. The respondent moved the Calcutta High Court in its revisional jurisdiction in Criminal Revision No. 282 of 1954	 which was heard by a Division Bench consisting of J. P. Mitter and section N. Guha Ray	 JJ. Cxuha Ray	 J.	 who delivered the judgment of the Court	 Mitter	 J.	 concurring	 held that the previous decision of the same High Court in The Corporation of Calcutta vs Sub Postmaster	 Dharamtala Post Office (1) was clearly distinguishable. The distinction pointed out was that the previous decision of the Court had relied upon the decision of the Judicial Committee of the Privy Council in Province of Bombay vs Municipal Corporation of the Citu of Bombay (2)	 in a case arising before the coming into force of the Constitution. As the present case arose after the advent of the Constitu tion	 the High Court did not feel bound by the aforesaid decision of the Privy Council and therefore examined the legal position afresh. On such an examination	 the High Court came to the conclusion that the Indian Legislature in enacting laws acted on the assumption that the Government would be bound unless excluded either expressly or by necessary implication oftener than on the assumption that it would not be bound	 unless the Legislature so provided expressly or by necessary implication. The High Court took the view that the decision of the Division (1) (2) (1946) L.R. 73 I.A. 271. 167 Bench of the Madras High Court in Bell vs The Municipal Commissioners for the City of Madras (1) was more in consonance with the law in India than the opposite view expressed in the Privy Council judgment aforesaid. They definitely decided that the law of India	 even before the coming into effect of the Constitution	 7 and even at the time of the passing of the Government of India Act	 1935	 was that the Government was bound by a Statute unless it was exempted either expressly or by necessary implication. In that view of the matter	 the High Court further observed that the question whether the decision aforesaid of the Privy Council was still good law under article 372 of the Constitution did not arise and that	 if it did	 it was inclined to the view that the law declared by the Privy Council was not continued by any provision of law. In effect	 the High Court took the view that the State was bound by the Statute unless it was excluded from its operation either expressly or by necessary implication. In that view of the matter	 it held that section 386 of the Act bound the appellant	 set aside the order of acquittal and sent the case back to the learned Magistrate for disposal according to law. The appellant made an application for special leave to appeal from the aforesaid judgment and order of the High Court	 and obtained special leave in September 1955. It is thus clear that this case had remained pending in this Court for about five years. If this Court agreed with the view expressed by the High Court	 the case would have to be tried on merits and the trial would begin more than eight years after the institution of the petition of complaint	 but	 as will presently appear	 this prosecution was misconceived and therefore	 in effect	 no one has been the worse for the long pendency of the prosecution	 which now must come to an end. The short question for determination in this appeal is whether any offence had been committed by the appellant	 as alleged against him. If he was bound by the provisions of the Act to take out a licence on payment of the necessary fees	 he must be held to have contravened the provisions of that Statute. It has (1) Mad. 457. 168 been contended by the learned Advocate General of Bengal	 representing the appellant	 that the decision of the Privy Council referred to above is still good law and that the contrary decision of the Division Bench of the Madras High Court (1) did not take the correct view of the legal position. The argument further is that the Privy Council decision was certainly binding on the Courts in India at the time it was rendered. That was the law of the land as declared by the highest judicial authority. Has that judicial determination been altered by the Constitution ? It has been argued that the law in India	 even after the coming into effect of the Constitution	 continues to be the same as the law in England in respect of the prerogatives of the Crown. The Act in question does not make any express provision binding the Government and there was nothing in the Act to show to the contrary by necessary implication. The Act could operate with reasonable efficacy without being held to be binding on the Government. It was further pointed out that the High Court had failed to take into con sideration the fact that that High Court itself had construed the Calcutta Municipal Act of 1923	 which was replaced by the present Act of 1951	 on the basis of the Privy Council decision not to have bound the Government. The Act of 1951 did not make any provision expressly abrogating that view. Hence	 it is argued the High Court should have felt bound by the previous decision of that very Court given on the basis of the Privy Council decision; and had erred in taking the opposite view. The argument further was that the State is not a person within the meaning of the penal section with reference to which the prosecution had been launched. The common law could not have been overridden impliedly by a course of legislation. The common law applies to India even after the Constitution	 not because there is the King or the Queen	 but because it is the law in force. In other words	 what was the prerogrative of the sovereign has now become the law of the land in respect of the sovereignty of the State. Thus the law of England	 which (1) Mad	 457. 169 in its source was the prerogative of the Crown	 was the common law of the land and was adopted by the Constitution by article 372	 subject to the reservations contained therein. The Attorney General for India as also the Advocates General of Madras and Bombay supported the contention raised on behalf of the appellant. Mr. N. C. Chatterjee	 who appeared on behalf of the respondent	 contended that the State is a legal person as recognised in article 300 of the Constitution and was	 therefore	 capable of rights and obligations; that unless there is an express exclusion of the State by the Legislature	 the Act would apply to all	 including the State. He further contended that under the Constitution there is no King and	 therefore	 there cannot be any question of prerogative. Any exemption from the operation of the statute must be found in express immunity under the law and cannot be implied. He went to the length of contending that a State 's prerogative is inconsistent with the whole Constitution. Whatever may have been the legal position before the coming into effect of the Constitution	 it has not countenanced the continuance of any such prerogative as is contended for on behalf of the appellant. Another line taken by Mr. Chatterjee is that when the State embarks upon a business	 it does so not in its sovereign capacity	 but as a legal person	 subject to the same rights and liabilities as any other person. In effect	 therefore	 he contended that the State is a person within the meaning of section 386 of the Act; that the doctrine of immunity of States from the operation of its laws cannot be invoked after the advent of the Constitution	 and	 alternatively	 that even if the immunity is available to the State as a sovereign power	 it is not available to the State when it embarked upon a commercial undertaking and that. in any case	 the State was bound by the law by applying the rule of necessary implication from the provisions of the Act. In this case it is manifest that it is the Government of West Bengal which is sought to be prosecuted 22 170 through one of its officers. The prosecution is not against a named person	 but against the Director of a named Department of the Government. The person who was the Director of the Department at the relevant date	 that is to say	 in the year 1951 52 may not be the same person who answered that description on the date the prosecution was launched. In essence	 therefore	 it is the Government of West Bengal which has to answer the charge levelled by the respondent	 the Corporation of Calcutta. Whether a prosecution against such an indeterminate person would or would not lie is a matter which has not been raised and	 therefore	 need not be discussed. The question most canvassed before us in whether the penal section invoked in this case applies to Government. It has been contended	 and in our opinion rightly	 that the provisions of the penal section neither by express terms nor by necessary implication are meant to be applied to Government. The decision of the Judicial Committee 'of the Privy Council(1)	 if it is good law even now	 completely covers this case	 but the decision of the High Court	 now under examination	 has taken the view that the earlier decision of the Division Bench of the Madras High Court (2 ) has laid down the correct law	 and not the Privy Council decision. We have	 therefore	 to decide which of the two decisions has taken the correct view of the legal position as it obtained on the day the prosecution was launched. It is well established that the common law of England is that the King 's prerogative is illustrated by the rule that the Sovereign is not necessarily bound by a statutory law which binds the subject. This is further enforced by the rule that the King is not bound by a statute unless he is expressly named or unless he is bound by necessary implication or unless the statute	 being for the public good	 it would be absurd to exclude the King from it. Blackstone (Commentaries	 Vol. I	 261 262) accurately summed up the legal position as follows: "The king is not bound by any act of Parliament	 unless he be named therein by special and (1) (1946) L.R. 73 I.A. 271. (2) Mad. 457. 171 particular words. The most general words that can be devised. affect not him in the least	 if they may tend to restrain or diminish any of his rights or interests. For it would be of most mischievous consequence to the public	 if the strength of the executive power were liable to be curtailed without its own express consent by constructions and implications of the subject. Yet	 when an act of Parliament is expressly made for the preservation of public rights and the suppression of public wrongs	 and does not interfere with the established rights of the crown	 it is said to be binding as well upon the king as upon the subject; and	 likewise	 the king may take the benefit of any particular act	 though he be not specialty named." (Quoted at p. 355 of Holdsworth	 A History of English Law	 Vol. The King 's prerogative is thus created and limited by common law and the sovereign can claim no prerogative	 except such as the law allows. (See Halsbury 's Laws of England	 Vol. 7	 Third Edition	 para. 464	 at p. 22 1). The prerogative of the Crown in respect of property is thus stated in the same volume of Halsbury 's Laws of England	 para. 980	 at p. 465: "The Crown not being bound by any statute whereby any prerogative right	 title	 or interest belonging to it may be divested or abridged	 unless expressly named or bound by clear implication	 property owned	 and occupied by the Crown is exempt from taxation unless rendered liable either by express words or necessary implication. Moreover	 an express exemption of particular classes of Crown property in a statute is not in itself sufficient to raise the implication that such property only is exempt	 and that other property not falling within the exception is bound	 such clauses being inserted merely ex majore cautela. " That was the law applicable to India also	 as authoritatively laid down by the Privy Council in the case referred to above. That decision was rightly followed by the Calcutta High Court as stated above. That would be the legal position until the advent of the Constitution. 172 The question naturally arises: whether the Constitution has made any change in that position ? There are no words in the Constitution which can be cited in support of the proposition that the position has changed after the republican form of Government has been adumbrated by our Constitution. It was argued on behalf of the respondent that the existence of such a prerogative is negatived by the very form of our new set up	 that is to say	 it was contended that the republican form of Government is wholly inconsistent with the existence of such a prerogative. In our opinion	 there is no warrant for such a contention. The immunity of Government from the operation of certain statutes	 and particularly statutes creating offences	 is based upon the fundamental concept that the Government or its officers cannot be a party to committing a crime analogous to the I prerogative of perfection ' that the King can do no wrong. Whatever may have been the historical reason of the rule	 it has been adopted in our country on grounds of public policy as a rule of interpretation of statutes. That this rule is not peculiar or confined to a monarchical form of Government is illustrated by the decision of the Supreme Court of U. section A. in the case of United States of America vs United Mine Workers of America (1)	 where it is laid down that restrictions on the issue of injunctions in labour disputes contained in certain statutes do not apply to the United States Government as an employer or to relations between the Government and its employees and that statutes in general terms imposing certain restrictions or divesting certain privileges will not be applied to the sovereign without express words to that effect. Similarly	 in the case of United States of America vs Reginald P. Wittek (2)	 the question arose whether the District of Columbia Emergency Rent Act applied to government owned defence housing or to government owned low rent housing in the District	 and it was ruled by the Supreme Court	 reversing the decision of the Municipal Court of Appeals	 that the statute in question did not apply to the United States Government (1) ; (2) ; 173 which was not a " landlord " within the meaning of the Act. The decision was based on the rule that a general statute imposing restrictions does not impose them upon the Government itself without a clear expression or implication to that effect. Another illustration of the rule is to be found in the case of Jess Larson vs Domestic and Foreign Commerce Corporation (1). In that case a suit by a citizen	 in effect	 against the Government (War Assets Administration) for an injunction was dismissed by the District Court on the ground that the Court did not have jurisdiction	 because the suit was one against the United States. The Supreme Court	 by majority	 held that the suit as against the United States must fail on the ground that according to the laws of the country the sovereign enjoyed an immunity which was not enjoyed by the citizens. The case of Roberts vs Ahern (2) is another illustration of the same rule. It was held by the High Court of Australia in that case that the Executive Government of the Commonwealth or of a State is not bound by a statute unless the intention that it shall be so bound is apparent. On the other hand	 article 372 of the Constitution has specifically provided that subject to the other provisions of the Constitution all the laws in force in this country immediately before the commencement of the Constitution shall continue in force until altered or repealed or amended by a competent Legislature or by other competent authority. The expression " law in force " has been used in a very comprehensive sense as would appear from the provisions of sub cls. (a) and (b) of cl. (3)of article 13 of the Constitution. If we compare the provisions of article 366(10) which defines " existing law " which has reference to law made by a legislative agency in contradistinction to " laws in force " which includes not only statutory law	 but also custom or usage having the force of law	 it must be interpreted as including the common law of England which was adopted as the law of this country before the Constitution came into force. It is thus clear that far from (1) ; : ; (2) (1904) I. C.L.R. 406. 174 the Constitution making any change in the legal position	 it has clearly indicated that the laws in force continue to have validity	 even in the new set up	 except in so far as they come in conflict with the express provisions of the Constitution. No such provision has been brought to our notice. That being so	 we are definitely of the opinion that the rule of interpretation of statutes that the State is not bound by a statute	 unless it is so provided in express terms or by necessary implication	 is still good law. But Mr. Chatterjee further contended	 alternatively	 that even if it were held that the Government as a sovereign power may have the benefit of the immunity claimed	 it is not entitled to that immunity when it embarks upon a business and	 in that capacity	 becomes subject to the penal provisions of the statute equally with other citizens. This question was not raised below and has not been gone into by the High Court	 nor is it clear on the record	 as it stands	 that the Food Department of the Government of West Bengal	 which undertook rationing and distribution of food on a rational basis had embarked upon any trade or business. In the absence of any indication to the contrary	 apparently this Department of the Government was discharging the elementary duty of a sovereign to ensure proper and equitable distribution of available food stuffs with a view to maintaining peace and good Government. Therefore	 the alternative argument suggested by Mr. Chatterjee has no foundation in fact. It only remains to consider the other alternative argument that even if the State has not been bound by the penal section in the statute in question in express terms	 it must be deemed to be bound by it by necessary implication. But no specific provisions of the statute in question have been brought to our notice which could lend any support to this alternative argument. It has not been shown to us that if the section which was sought to be applied against the Government were held not expressly to apply to Government	 the law will lose any of its efficacy	 or that its working will be hampered in any way. It must	 therefore	 be 175 held that there is no substance in this contention either. The appeal is accordingly allowed	 the judgment under appeal set aside and the acquittal of the appellant confirmed. SARKAR J. The appellant is an officer of the Government of West Bengal. He was prosecuted before a Municipal Magistrate of Calcutta for storing rice in certain premises without obtaining a licence for that purpose from the respondent	 the Corporation of Calcutta	 as required by section 386 of the Calcutta Municipal Act	 1923. That was an Act passed by the legislature of the former Province of Bengal and may	 for the present purpose	 be taken to have been passed by the legislature of the State of West Bengal. In storing the rice the appellant had acted in his official capacity and for carrying out the West Bengal Government 's rationing scheme. The Magistrate acquitted the appellant holding that the Act did not bind the Government as it was neither expressly nor by necessary implication made bound	 and so	 the appellant who had been prosecuted as representing the Government would not be liable for non compliance with its provisions. On revision the High Court at Calcutta held that the English rule that a statute did not bind the Crown unless expressly or by necessary implication made bound	 did not apply to Indian statutes and so the Government would be liable for breach of the provisions of the Calcutta Municipal Act. In this view of the matter	 the High Court set aside the order of acquittal and sent the case back to the Magistrate for disposal on the merits. This appeal has been taken from the order of the High Court with special leave granted by this Court. The main question is whether the English rule that The Crown is not bound by the provisions of any statute unless it is directly or by necessary implication referred to " applies to India. It is said that the rule is based on the English law of Crown prerogatives and has no application to India since the promulgation of our Constitution as we have now a republican 176 form of government where no question of royal prerogatives can arise. It is pointed out that the prosecution was in this case started since the Constitution came into force and whatever may have been the position earlier	 the Government can no longer take shelter under the English rule. I think the rule applies to India even after the Constitution. It seems to me that the rule as applied in modern times	 is really a rule of construction of statutes and is not dependent on royal prerogatives. This is the view that appears to have been taken in all recent authorities	 to some of which I wish now to refer. In Craies on Statutes (5th Ed.) it is stated at p. 392 that " The rule is analogous	 if not equivalent	 to the rule already stated that the common law is not presumed to be altered by statute ". The rule	 therefore	 is based on the presumed intention of the legislature and is	 hence	 a rule of construction of statutes. Then I find it stated in Attorney General vs Donaldson (1) that " It is a well established rule	 generally speaking	 in the construction of Acts of Parliament	 that the King is not included unless there are words to that effect; for it is inferred prima facie that the law made by the Crown with the assent of the Lords and Commons	 is made for subjects and not for the Crown". Again in Comber V. Justices of Berks (2) it was said in reference to this rule	 " In Rex vs Cook	 3 T.R. 519	 the general principle as to the construction of statutes imposing charges as containing an exemption of the Crown was laid down ". In the Australian case of Roberts vs Ahern (3)	 it was said	 "This rule has commonly been based on the Royal prerogative. Perhaps	 however	 having regard to modern developments of constitutional law	 a more satisfactory basis is to be found in the words of Alderson	 B." The words referred to are what I have already set out from Attorney General vs Donaldson (1). In America too this rule has been applied as a rule (1) ; 	 123; ; (2) ; 	 65. (3) (1904) 1.C.L.R. 406	 417. 177 of construction though there is no King there but the government is of the republican form. So in United States vs United Mine Workers of America (1) it was observed	 " There is an old and well known rule that statutes which in general terms divest pre existing rights or privileges will not be applied to the sovereign without express words to that effect. It has been stated	 in cases in which there were extraneous and affirmative reasons for believing that the sovereign should also be deemed subject to a restrictive statute	 that this rule was a rule of construction only ". Again in reference to the same rule it was said in United States V. State of California (2). " The presumption is an aid to consistent construction of statutes of the enacting sovereign when their purpose is in doubt ". In our country also in Bell vs The Municipal Commissioners for the City of Madras(3)	 a case on which much reliance has been placed by the respondent	 it was said after referring to various English cases dealing with the rule	 " This emphatic statement of the rule being founded upon general principles of construction is undoubtedly applicable as much to Indian enactments as to Colonial or Imperial Statutes ". It was also said at the same page	 " The rule of construc tion above adverted to cannot itself be regarded as a prerogative of the Crown ". Then I find that in England the rule protects from the operation of a statute not only what may strictly be called Crown prerogatives	 or whatever is nowadays left of them	 but all the Crown 's rights	 title and interest: see Halsbury 's Laws of England (3rd Ed.) Vol. VII	 p. 465. In volume XXXI of the Second Edition of the same treatise it is stated with reference to the rule that	 " The Crown for this purpose means not only the King personally	 but also the officers of State and servants of the Crown when acting within the scope of their authority on behalf of the Crown in the discharge of executive duties ". In Mersey Docka (1) ; 	 272 ; ; 	 902. (2) ; 	 186; ; 	 574. (3) Mad. 457	 485. 23 178 vs Cameron(1)	 Lord Cranworth after referring to the various instances where the rule had been applied to exempt buildings occupied for purposes of the government from rates and other impositions	 said	 " These decisions however have all gone on the ground more or less sound	 that these might all be treated as buildings occupied by the servants of the Crown	 and for the Crown	 extending in some instances the shield of the Crown to what might more fitly be described as the public government of the country ". Again in Coomber vs Justices of Berks (2)	 Lord Blackburn after referring to certain observations of Lord Westbury in the Mersey Docks case(1) said	 "He there says that the public purposes to make an exemption " must be such as are required and created by the government of the country	 and are	 therefore	 to be deemed part of the use and service of the Crown;" and in Greig vs University of Edinburgh (3) be more clearly shews what was his view by using this language	 "property occupied by the servants of the Crown	 and (according to the theory of the Constitution) property occupied for the purposes of the administration of the government of the country	 become exempt from liability to the poor rate ". " In this case it was held that lands with buildings constructed thereon and used by county justices	 and for police purposes were not liable to income tax. In Cooper vs Hawkins (4) it was held that an engine driver employed by the Crown who drove a steam locomotive on Crown service at a speed exceeding the limit specified by regulations made under a statute	 was not liable as in the absence of express words	 the statute did not bind the Crown. Lastly	 I refer to Roberts vs Ahern (5) where a person acting under the orders of the Government of the Commonwealth of Australia had been prosecuted for having carted away nightsoil from a Post Office without a licence from	 and without having given any security to	 the local authority as was required by an enactment of the State of Victoria. It was held that he was not liable to prosecution because	 (1) ; 	 508; ; (2) ; 	 65. (3) (1868) L.R.I H.L	 (SC.)348. (4) (5) ; 	 417. 179 " The modern sense of the rule	 at any rate	 is that the Executive Government of the State is not bound by Statutes unless that intention is apparent: " p. 418. It was also said that " The doctrine is well settled in this sense in the United States of America: " (p. 418). It is unnecessary to multiply instances where acts of the executive government have received the protection of the rule. All this would seem to put it beyond doubt	 that whatever its origin	 the rule has long been regarded only as a rule of construction. It has been widely used to exempt executive governments from the operation of statutes quite apart from protecting prerogative rights of the British Crown strictly so called. It has been held reasonable to presume that the legislature intended that executive governments are not to be bound by statutes unless made bound expressly or by necessary implication. It would be equally reason. able to do so in our country even under the present set up for the presumption has all along been raised in the past and especially as the applicability of the rule can no longer be made to depend on the prevailing form of government. In countries with a republican form of government	 the Sovereign would be the State	 and its acts	 which can only be the acts of its executive limb would be	 under the rule exempt from the operation of its statutes. Whether the royal prerogative as understood in England	 exists in the present day India is not a question that can arise in applying what is a pure rule of construction of statutes. Further it is quite clear that the rule has been applied by courts in India in the construction of Indian statutes all along at any rate upto the promulgation of our Constitution	 except in the solitary instance of Bell 's case (1) earlier referred to. It would therefore be right to hold that the legislatures in our country have proceeded on the basis that the rule would govern the enactments passed by them. That being so and remembering that the rule is one of construction	 there would be no reason to deny its application to Indian statutes after the Constitution. The Dew republican (1) Mad. 180 form of government adopted by us would not warrant a departure from the long established rule of construction. It was then said that the course of legislation in India would indicate that it was not intended even before the Constitution that the rule would apply to Indian statutes. This contention was based on Bell 's case(1). That case seems to me to have proceeded on a basis not very sound. On an examination of certain Indian statutes it was said	 " It is noteworthy that as a general rule government is specially excluded whenever the Legislature considered that certain provisions of an enactment should not bind the Government ". From this the conclusion was drawn that "According to the uniform course of Indian legislation	 statutes imposing duties or taxes bind Government as much as its subjects	 unless the very nature of the duty or tax is such as to be inapplicable to the Government ". It seems to me that this decision overlooks the uniform course of decisions of Indian Courts applying the rule in the construction of Indian statutes. The legislature must be deemed to have known of these decisions and if they wanted to depart from their effect they would have passed a statute bringing about the desired result. No such statute was ever passed. It is wellknown that in these circumstances the legislatures must be taken to have proceeded on the basis that the decisions were correct and the rule was to be applied to the statutes passed by them. That being so	 an examination of the course of Indian legislation would be irrelevant. The cases where the Government was expressly excluded must be taken to be instances of exemptions ex majori cautila: see Hornsey Urban Council vs Hennel(2). Furthermore	 it seems to me that a comparison of the number of statutes where the Government had been specially excluded from their operation with the number where the statutes are silent on the subject	 is	 at best	 a very unsafe guide for deciding whether the rule should be applied to Indian enactments. I therefore dissent from the view expressed in Bell 's case(1)	 that the rule does not apply in India. (1) Mad. (2) 181 Now it seems to me that in storing the rice in the present case	 the Government of West Bengal was performing one of its governmental functions. It was storing rice for purposes of rationing	 that is	 making food stuff available to citizens in time of scarcity. That such activity is a part of the government 's duty is unquestionable. The act for which the appellant was prosecuted was	 therefore	 an act of the West Bengal Government done in discharge of its ordinary duties as the government and the rule would prevent the Act from applying to make the Government liable for a breach of it. Then it is said that the Act binds the Government by necessary implication. In support of this argument we were referred to certain provisions of the Act which expressly exempted the Government from their operation. I am unable to agree that this raises the necessary implication. It has been said in Halsbury 's Laws of England (2nd Ed.) Vol. XXXI at p. 523 that " A general prerogative of the Crown is not deemed to have been abandoned by implication by reason of the specific exemption in a statute of any class of the servants of the Crown from acting in compliance with the prerogative	 nor by reason of the :fact that the Crown has foregone or curtailed its rights in some other direction in another part of the statute " ; see also Hornsey Urban Council case (1) earlier referred to. These observations would show the unsoundness of the contention raised by the respondent. Lastly	 it is said that the purpose of the Act was to prevent adulteration of food stuffs and this object would be wholly defeated unless the Government was bound by it. It is not in dispute that if this were so	 that might be a ground for holding that the Act bound the Government. On this aspect of the case reference may be made to Province of Bombay vs Municipal Corporation of Bombay (2). I am however unable to hold that the purpose of the Act would be wholly or at all defeated if the Government were not bound by it. It seems to me that section 386 of the Act	 the breach of which is complained in this case	 is concerned with (1) (2) (1946) L.R. 73 I.A. 271. 182 the use of premises and not with the prevention of adulteration of food stuffs as was contended for the respondent. The provisions with regard to adulteration of food stuffs are contained in a	 different part of the statute. There is nothing to show that the purpose of the Act would wholly be defeated if some premises were used contrary to the terms of the Act. I would for these reasons hold that the Act did not bind the Government and the prosecution of the appellant for an act done in the discharge of his duties as an officer of the Government cannot be maintained. This appeal should therefore be allowed and the order of the High Court set aside and that of the Magistrate restored. WANCHOO J. I have had the advantage of reading the judgments prepared by my Lord the Chief Justice and my brother Sarkar J. I agree with their conclusion but my reasons are different. I therefore proceed to state my reasons for coming to the same conclusion. The facts have already been stated in the judgment of my Lord the Chief Justice and I will not therefore repeat them. Suffice it to say that the Corporation of Calcutta initiated this prosecution	 in substance	 of the State of West Bengal through its Director of Rationing and Distribution under section 488 of the Calcutta Municipal Act	 No. 111 of 1923	 (now equivalent to section 537 of the Calcutta Municipal Act	 No. XXXIII of 1951)	 for using or permitting to be used certain premises for the purpose of storing rice	 etc. under the provisions of the Bengal Rationing Order	 1943	 without a licence under section 386 of Act III of 1923	 (now equivalent to section 437 of Act XXXIII of 1951). The State did not deny the facts; but it was contended on its behalf that the prosecution was not maintainable in law. The Magistrate held that the provisions of section 386 of the 1923 Act did not apply to the State either expressly or by necessary implication and therefore passed an order of acquittal. The Corporation took the matter in revision to the High Court	 which distinguished an earlier decision of the High Court relied upon by the Magistrate and held that after India became a 183 democratic republic from January 26	 1950	 the High Court was not bound by the decision of the Privy Council in a similar matter reported in Province of Bombay vs Municipal Corporation of the City of Bombay (1) and that the rule of construction based on the royal prerogative that the Crown was not bound by a statute unless it was expressly named therein or at any rate could be held to be bound by necessary implication	 did not apply in India after January 26	 1950	 and that the true rule of construction on which the Indian legislatures acted was that the State would be bound unless excluded either expressly or by necessary implication. The High Court therefore held that section 488 of the Act of 1923 read with section 386 bound the State and set aside the order of acquittal and sent the case back to the Magistrate for disposal according to law. The most important question thus is	 whether the rule of construction derived from the royal prerogative in England can still be said to apply in India after January 26	 1950. If this rule of construction based on the royal prerogative does not apply	 it would necessarily follow that the ordinary rule of construction	 namely	 that the State would also be bound by the law like anybody else unless it is expressly excluded or excluded by necessary implication	 would apply. Now the rule of construction based on the royal prerogative is a survival from the medieval theory of divine right of Kings and the conception that the sovereign was absolutely perfect	 with the result that the common law of England evolved the maxim that " the King can do no wrong ". In course of time however the royal prerogative in England was held to have been created and limited by the common law and the sovereign could claim no prerogatives	 except such as the law allowed nor such as were contrary to Magna Carta or any other statute or to the liberties of the subject. The courts also had jurisdiction to inquire into the existence or extent of any alleged prerogative. If any prerogative was disputed	 they had to decide the question whether or not it existed in the same way as they decided any other question of law. If a	 (1) (1946) L.R. 73 I.A. 271. 184 prerogative was clearly established	 they could take the same judicial notice of it as they took of any other rule of law: (see Halsbury 's Laws of England	 3rd Edition	 Vol. 7	 p. 221	 para. 464). The question of royal prerogative was also considered in Attorney General vs De Keyser 's Royal Hotel Limited(1). It was held there in that even where there was prerogative it could be curtailed by a statute	 if the statute dealt with something which before it could be affected by the prerogative	 inasmuch as the Crown was a party to every Act of Parliament. Thus in modern times	 the royal prerogative is the residue of discretionary or arbitrary authority which at any time is legally left in the hands of the Crown and is recognised under the common law of England. Two things are clear from this modern conception of royal prerogative	 namely	 (1) that there must be a Crown or King to whom the royal prerogative attaches	 and (2) that the prerogative must be part of the common law of England. Both these conditions existed when the Privy Council decision in Province of Bombay vs Municipal Corporation of the City of Bombay (2) was given in October 1946; the King was still there and the Privy Council held that the English common law rule of construction applied to Indian legislation as much as to English statutes. I may mention however that in England also the rule has come in for criticism by writers of books on law. Glanville L. Williams in his treatise on " Crown Proceedings " says at p. 53: " The rule originated in the Middle Ages	 when it perhaps had some justification. Its survival	 however	 is due to little but the Vis inertiae." Again at 54	 the author says " With the great extension in the activities of the State and the number of servants employed by it	 and with the modern idea	 expressed in the Crown Proceedings Act	 (compare in this connection article 300 of our Constitution),  that the State should be accountable in wide measure to the law	 the presumption should be that a statute binds the Crown rather than it does not." (1) ; (2) (1946) L.R. 73 I.A. 271. 185 After January 26	 1950	 when our country became a democratic republic and the King ceased to exist	 it is rather otiose to talk of the royal prerogative. It is also well to remember that the English common law as such never applied to India	 except in the territories covered by the original side of the three Chartered High Courts	 namely	 Calcutta	 Bombay and Madras	 (see Kahirodebihari Datta vs Mangobinda Panda(1) ) though sometimes rules of English common law were applied by Indian courts on grounds of justice	 equity and good conscience. It seems to me therefore that to apply to Indian statutes a construction based on the royal prerogative as known to the common law of England now when there is no Crown in this country and when the common law of England was generally not even applicable	 (except in a very small part)	 would be doing violence to the ordinary principle of construction of statutes	 namely	 that only those are not bound by a statute who are either expressly exempted or must be held to be exempt by necessary implication. In our country the Rule of Law prevails and our Constitution has guaranteed it by the provisions contained in Pt. III thereof as well as by other provisions in other Parts: (see Virendra Singh and others vs The State of Uttar Pradesh (2) ). It is to my mind inherent in the conception of the Rule of Law that the State	 no less than its citizens and others	 is bound by the laws of the land. When the King as the embodiment of all power executive	 legislative and judicial has disappeared and in our republican Constitution	 sovereign power has been distributed among various organs created thereby	 it seems to me that there is neither justification nor necessity for continuing the rule of construction based on the royal prerogative. It is said that though the King has gone	 sovereignty still exists and therefore what was the prerogative of the King has become the prerogative of the sovereign. There is to my mind a misconception here. It is true that sovereignty must exist under our Constitution (1) Cal. 841	 857. (2) (1955) 1.S.C.R. 415. 186 but there is no sovereign as such now. In England	 however	 the King is synonymous with the sovereign and so arose the royal prerogative. But in our country it would be impossible now to point to one person or institution and to say that he or it is the sovereign under the Constitution. A further question may arise	 if one is in search of a sovereign now	 whether the State Government with which one is concerned here is sovereign in the same sense as the English King (though it may have plenary powers under the limits .set under our Constitution). This to my mind is another reason why there being no King or sovereign as such now in our country	 the rule of construction based on the royal prerogative can no longer be invoked. Reliance was placed in this connection on certain cases from Australia and Canada and also from the United States of America. So far as Australia and Canada are concerned	 the cases are not of much help for the Crown exists there still. Besides in Canada and in most of the provinces of Canada and in New Zealand provisions have been specifically introduced in the Interpretation Acts laying down that no provision or enactment in any Act shall affect	 in any manner whatsoever	 the rights of His Majesty	 his heirs or successors	 unless it is expressly stated 'therein that His Majesty shall be bound thereby: (see Street on Governmental Liability "	 at p. 152). In the United States also	 it is doubtful if the royal prerogative as such is relied on as the basis of certain principles which are in force there. In United States of America vs United Mine Workers of America	 Etc. (1)	 the Supreme Court did say that there was an old and well known rule that statutes which in general terms divested pre existing rights and privileges would not be applied to the sovereign without express words to that effect. But there was no discussion of the royal prerogative as such in the judgment and the rule was called a well established rule of construction only. Besides the Court went on to consider the words of the statutes under consideration and held that on a proper construction of them the United States was not bound. (1) ; 187 In United States of America vs Reginald P. Wittek (1)	 the Supreme Court did say that a general statute imposing restrictions does not impose them upon the government itself without a clear expression or implication to that effect; but this decision was based mainly on the terms of the State statute there under consideration and the surrounding circumstances and legislative history of the statute concerned. Another case in the same volume is Jess Larson vs Domestic and Foreign Commerce Corporation (2) at p. 1628	 where a suit was brought against an officer of the United States and it was held that it was in substance a suit against the sovereign government over which the court in the absence of consent had no jurisdiction. There is no discussion in this case of the royal prerogative having continued in the United States and the decision seems to have turned on some law of that country which provides that a suit against the Government could not be tried in a court in the absence of consent. As against these decisions I may refer to H. Snowden Marshall vs People of the State of New York (3) to show that royal prerogative as such is losing ground in the United States	 if nothing more. When dealing with the priority of a State over the unsecured creditors in payment of debts out of the assets of the debtor	 the Supreme Court held that whether the priority was a prerogative right or merely a right of administration was a matter of local law and the decision of the highest court of the State as to the existence of the right and its incidents would be accepted by the Federal Supreme Court as conclusive. Again in Guaranty Trust Company of New York vs United States of America (4)	 the Supreme Court held that the immunity of the sovereign from the operation of statutes of limitation	 although originally a matter of royal prerogative	 was now based upon the public policy of protecting the citizens of the State from the loss of their public rights and revenues through the (1) L. Ed. 1406. (2) L. Ed. 1628. (3) ; L. Ed. 315. (4) ; 188 negligence of the officers of the State	 showing that some of those immunities which in England were claimed as royal prerogatives	 though preserved in the United States	 were so preserved for other reasons. Besides it must not be forgotten that though the Crown no longer remained in the United	 States after the attainment of independence the American colonies out of which the United States arose were colonised by English settlers who carried the common law of England with them to America with the result that the first Constitution of some of the States (like New York) after independence provided that the common law of England which together with the statutes constituted the law of the colony before independence should be and continue to be the law of the State subject to such alterations as its legislature might thereafter make: (see H. Snowden Marshall vs People	 of the State of New York( ')	 at p. 317). That may account for the United States recognising some of those prerogative rights which were in force in England; though even so	 the basis for such recognition is now more the law or public policy than any royal prerogative as such. The position in our country was somewhat different. We had the King but the common law of England did not	 as already indicated	 apply as a rule in this country. Now that the King has also gone	 there seems to be no reason for continuing the royal prerogatives after January 26	 1950. Further it appears to me that the royal prerogative where it deals with substantive rights of the Crown as against its subjects	 as	 for example	 the priority of Crown debts over debts of the same nature owing to the subject	 stands on a different footing from the royal prerogative put forward in the present case	 which is really no more than a rule of construction of statutes passed by Parliament. Where	 for example	 a royal prerogative dealing with a substantive right has been accepted by the	 Courts in India as applicable here also	 it becomes a law in force which will continue in force under article 372(1) of the Constitution. But (1) ; ; 189 where the royal prerogative is merely a rule of construction of statutes based on the existence of the Crown in England and for historical reasons	 I fail to see why in a democratic republic	 the courts should not follow the ordinary principle of construction that no one is exempt from the operation of a statute unless the statute expressly grants the exemption or the exemption arises by necessary implication. On the whole therefore I am of opinion that the proper rule of construction which should now be applied	 at any rate after January 26	 1950	 is that the State in India whether in the Centre or in the States is bound by the law unless there is an express exemption in favour of the State or an exemption can be inferred by necessary implication. The view taken by the Calcutta High Court in this connection should be accepted and the view expressed by the Privy Council in Province of Bombay vs Municipal Corporation of the City of Bombay (1) should no longer be accepted as the rule for construction of statutes passed by Indian legislatures. Let me then come to the question whether on the view I have taken of the rule of construction	 the prosecution in this case can be allowed to continue. There is nothing in the Act of 1923 or in the Act of 1951 exempting the State specifically from any of the provisions of the Calcutta Municipal Act. In this case the State is being prosecuted under section 488 (or section 537 now) and that section provides for fine for breach of section 386 (or section 437 now). The provision is a penal provision ' and immediately a question arises whether the State as such	 apart from its individual officers as natural persons	 is liable to prosecution under the criminal law or has to be exempted from the operation of the provisions of criminal statutes by necessary implication. A criminal proceeding generally ends with punishment which may be imprisonment	 or fine	 or both. Now it does not require any elaborate reason to realise that the State as such cannot be sentenced to imprisonment because there is no way of (1) (1946) L.R. 73 I.A. 271. 190 keeping it in prison; therefore	 by necessary implication	 the State is exempt from all penal statutes and provisions providing for sentences of imprisonment or death. Then come those penal provisions which impose fines	 like the present case	 and the question is whether in such a case also the State must be deemed by necessary implication to be exempt from the penal provision. Generally speaking fines when inflicted by courts are realised by the State and go to the coffers of the State. In effect	 therefore if the State as such is to be prosecuted under a penal statute imposing fine the result is that the Court will sentence the State to fine which will go to the State itself. It is obvious that if such is the result of a prosecution	 namely that the accused gets the fine	 the intention could never be that such a prosecution should be launched. Therefore where the penalty is fine and the fine goes to the State	 it must be held that by necessary implication the law does not intend the State to be prosecuted for such an offence. In the present case I find that under section 81 of the Act of 1923 (or the corres ponding section 115 of the Act of 1951) the fines imposed by the Magistrate will not go to the Corporation but in the usual way to the State. Under the circumstances whatever other methods may be possible for enforcing the provisions of section 386 (or section 437 now) against the State it cannot be intended to be enforced by prosecution resulting in fine which would go to the State itself. In these circumstances it must be held that by necessary implication the State is exempt from the penal provisions contained in section 488 (now section 537). I would therefore allow the appeal	 set aside the judgment of the High Court and restore the order of acquittal by the Magistrate. Appeal allowed.

Summary:
The appellant was using certain premises in Calcutta for storing rice flour	 etc. without taking out any license under section 386(1)(a) of the Calcutta Municipal Act	 1923. The respondent filed a complaint against the appellant for a contravention of section 386(1)(a). The trial Magistrate acquitted the appellant holding that the provisions of section 386(1)(a)	 neither in terms nor by necessary implication bound the Government whom the appellant represented. In revision	 the High Court held that the Government was bound by a statute unless the legislature excluded it expressly or by necessary implication. The High Court declined to follow the decision of the Privy Council in L. R. 73 1. A. 271 that the general principle applicable in England applied to Indian legislation also. Held	 that the State was not bound by the provisions of section 386(1)(a) of the Calcutta Municipal Act	 1923	 and that the appellant was not liable to be prosecuted for a contravention of this section. Per Sinha	 C. J.	 Imam and Shah	 jj. The law applicable to India before the Constitution was as authoritatively laid down by the Privy Council in L. R. 73 I. A. 271. The Constitution has not made any change in the legal position. On the other hand it has clearly indicated that the laws in force before January 26	 1950	 shall continue to have validity even in the new set up except in so far as they were in conflict with the express provisions of the Constitution. The rule of interpretation of statutes that the State is not bound by a statute unless it is so provided in express terms or by necessary implication	 is still good law. Province of Bombay vs Municipal Corporation of the City of Bombay	 (1946) L.R. 73 I. A. 271	 applied. Bell vs The Municipal Commissioners for the City of Madras	 Mad. 457	 disapproved. The Corporation of Calcutta vs Sub Postmaster	 Dharmatala Post Office	 	 United States of America vs 159 United Mine Workers of America; 	 	 United States of America vs Reginald P. Wittek	 (1949) 93 L. Ed. 1406	 Less Larson vs Domestic and Foreign Commerce Corporation	 ; and Roberts vs Abern	 (1904) I C. L. R. 406	 referred to. There is nothing in the Act to indicate that the State was bound by it by necessary implication	 nor is there anything in it to show that if section 386 were not held to apply to the State the law would lose it efficacy or that its working would be hampered in any way. Per Sarkar	 J. The rule that the crown is not bound by the provisions of any statute unless it is directly or by necessary implication referred to is really a rule of construction of statutes and is not dependent on royal prerogatives. It has been applied by courts in India all along before the Constitution and there is no reason why it should not be applied to the interpretation of statutes after the Constitution. Attorney General vs Donaldson	 ; 	 Coomber V ' justices of Berks; 	 	 Roberts vs Ahern	 (1904) I C.L.R. 406	 United States vs United Mine Workers of America; 	 	 United States vs The State of California	 ; Bell vs The Municipal Commissioners for the City of Madras	 Mad. 457	 Mersey Docks vs Cameron	 ; and Coomber vs Justice of Berks	 	 Greig vs University of Edinburgh	 (1868) L. R. I H. L. (SC.) 348 and Cooper vs Hawkin section 	 referred to. Section 386(1)(a) does not bind the Government by necessary implication; the fact that certain provisions of the Act expressly exempt the Government does not raise the necessary implication. Nor would the purposes of the Act be defeated if the Government were not bound by it. Hornsey Urban Council vs Hennel	 and Province of Bombay vs Municipal Corporation	 Bombay	 (1946) L.R. 73 1. A. 271	 relied on. Per Wanchoo	 J. The rule of construction which is based on the royal prerogative as known to the common law of England cannot be applied to India now when there is no crown in India and when the Common law of England is not applicable. The	 proper rule of construction which should be applied now is that the state is bound by a statute unless it is exempted expressly or by necessasy implication. Province of Bombay vs Municipal Corporation of the City of Bombay	 (1946) L. R. 73 1. A. 271	 not applied. United States of America vs United Mine Workers of America	 Etc.	 	 United States of America vs Reginald P. Wittek; 	 	 Jess Larson vs Domestic and Foreign 160 Commerce Corporation; 	 	 H. Snowden Marshall vs People of the State of New York	 (192O) 65 L. Ed. 315 and Guaranty Trust Company of New York vs United States of America	 ; 	 referred to. The Calcutta Municipal Act	 1923	 does not specifically exempt the State from its provisions	 As the State cannot be sentenced to imprisonment it is exempt by necessary implication from all penal provisions providing for sentences of imprisonment or death. Further	 where a statute provides for a fine and the fine goes to the State	 the State is exempted from the provisions by necessary implication as it could never be the intention that such a prosecution should be launched. The prosecution in the present case is under section 488 which provides for a fine for a breach of section 386	 and the fine when imposed and realised goes to the State. Consequently	 the State is exempt from the penal provisions of section 488 of the Act by necessary implication.