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Mahammad HussaIn Vs. the State - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantMahammad Hussain
RespondentThe State
Excerpt:
- - 580). it would be bad law 'if it arbitrarily selects one individual or a class of individuals, one corporation or a class of corporations and visits a penalty upon them, which is not imposed upon others guilty of like delinquency. now, it is well settled that the equal protection of the laws guaranteed by article 14 of the constitution does not mean that all laws must be general in character and universal in application and that the state is no longer to have the power of distinguishing and classifying persons or things for the purposes of legislation. any hurried steps taken in an area though with the best of intentions, may lead to complications. the failure on the part of the government to assimilate the laws in force in the districts of nowgong and sibsagar immediately from the..... ram labhaya, j.1. this is an appeal from the order of the deputy commissioner, sibsagar dated 9th august, 1953 by which the appellant was found guilty and convicted under section 304 of the indian penal code and sentenced to rigorous imprisonment for seven years.2. the prosecution case was that on llth may, 1952 at about 2 p.m. the accused went to the house of ataur rahman (deceased) who was his brother-in-law. he had ascertained before going that ataur rahman himself was not at home. it is said that he intended to commit rape on ataur rahman's wife. on arrival there he asked musst, bibijan, wife of the deceased as to where ataur rahman had gone. she told him that he had gone to bolhepar. he then seized her and wanted to drag her inside the house with intent to commit rape on her. he.....
Judgment:

Ram Labhaya, J.

1. This is an appeal from the order of the Deputy Commissioner, Sibsagar dated 9th August, 1953 by which the appellant was found guilty and convicted under section 304 of the Indian Penal Code and sentenced to rigorous imprisonment for seven years.

2. The prosecution case was that on llth May, 1952 at about 2 p.m. the accused went to the house of Ataur Rahman (deceased) who was his brother-in-law. He had ascertained before going that Ataur Rahman himself was not at home. It is said that he intended to commit rape on Ataur Rahman's wife. On arrival there he asked Musst, Bibijan, wife of the deceased as to where Ataur Rahman had gone. She told him that he had gone to Bolhepar. He then seized her and wanted to drag her inside the house with intent to commit rape on her. He was trying to throw her down on a 'Khatia' when she raised the alarm. Ataur Rahman, deceased, appeared on the scene at that moment. A struggle followed between the deceased and the accused in the course of which the accused stabbed the deceased on different parts of the body with a dagger (Ext. I) which he had brought with him. The deceased went out and dropped down dead almost instantaneously. In the course of this struggle Musst. Bibijan caused injuries on the back of the accused with a knife (Ex. II) in order to save her husband.

3-10. The accused pleaded not guilty. His defence was that Ataur Rahman, deceased, was killed by Bibijan, his wife, in the course of a quarrel. He was trying to rescue Ataur Rahman, when injuries were caused to him. also by Bibijan. (His Lordship then examined the evidence and stated). The circumstances make out a case of murder against him. The learned trial Judge convicted him under section 304 Indian Penal Code. He did not state which part of section 304, I. P. C. was applicable. The learned Counsel for the appellant has not challenged the validity of conviction under section 304, Indian Penal Code. But considering that the learned judge found that there was no deliberate intention to kill, it appears that he probably had Section 304, Part 2 in mind. In this respect the view taken by the learned trial judge is most favourable to the accused. His conviction on facts is not assailable and the sentence passed on him errs on the side of leniency.

11. The learned Counsel for the appellant however has contended that by Notification No. TAD/R/31/50/51 dated 13th April, 1951 the Mikir Hills Autonomous District was formed. The notification tools effect from 17th November, 1951. The district that was formed did not include certain areas which formed part of the Mikir Hills; vide Notification No. TAD/31/50/150 dt. 13th April, 1951. One of the areas so excluded was Sarupathar Mauza. The venue of the alleged offence is in this area. The offence was committed on 11th May, 1952 after its exclusion from newly formed Mikir Hills Autonomous District. It is contended that in these circumstances the trial should have been according to the provisions of the Code of Criminal Procedure, The rules relating to the administration of law and justice in the Mikir Hills could not apply, as on the date of the commission of the offence these rules had ceased to be of any effect by reason of the fact that the area where the offence was committed had been excluded from the Mikir Hills Autonomous District,

12. It is common ground that the area within which the offence occurred has been excluded from the area of Part A of the table attached to the Sixth Schedule. This seems to be the effect of the notification dated 13th April, 1951. Paragraph 20 of the Schedule provides in express terms that 'the areas specified in Parts A and B of the table below shall be the tribal areas within the State of Assam.' In paragraph 21 power is reserved to the Parliament to amend by way of addition, variation or repeal any of the provisions of the Schedule. Paragraph 20 which specifies the area in Parts A and B also forms part of the Schedule. Amendment of the Schedule is possible only under paragraph 21 by Parliament.

Notwithstanding these provisions the Governor could by public notification include any area in Part A or exclude any area from the Part A of the said table, vide paragraph 1(3) (a) and (b), as the provisions of paragraph 1 override the provisions contained in paragraph 20. Para. 1(1) expressly provides that 'subject to the provisions of this paragraph, the tribal areas in each item of Part A of the table appended to paragraph 20 of this Schedule shall be an autonomous district.' The provisions contained in paragraph 20 thus may be altered by action under paragraph 1. The exclusion of the area in question from the Mikir Hills Autonomous District thus amounts to an exclusion of the area from the areas of Part A of the Sixth Schedule.

13. The next question is what laws would apply to the area so excluded. The rules relating to the administration of Justice in Mikir Hills (vide Notification No. 2617-A. P. dated 29th March, 1937) admittedly applied to this area before its exclusion. Mr. Barua contends that though these rules would have continued to apply under Article 372 of the Constitution, they cannot apply on the ground that their application would deprive the inhabitants of the excluded area from equality before the law or equal protection of the laws. The rules relating to the administration of justice merely authorise the authorities acting under them to be guided by the spirit of the Criminal Procedure Code. The Code itself is not applicable. If the Code had applied, the accused in this case would have had the right to a trial by a jury.

Article 372(1) of the Constitution provides as follows:

Notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.

Mr. Bania urges that laws which would continue to have force by virtue of article 372(1) must be in conformity with the other provisions of the Constitution, for, their continuance has been provided for subject to the other provisions of the Constitution. Where any law or any piece of legislation offends against the protection given to the citizens by article 14 the law can have no force. It would be hit by article 14 and therefore would be ineffective. He urges that in these circumstances the rules relating to the administration of justice in these areas have ceased to have force and therefore the laws which apply to the districts of Sibsagar & Nowgong would apply also to this area automatically. It follows that if the rules relating to the administration of justice in the area do not offend against article 14, they would remain in force till they are altered, repealed or amended by a competent legislature or other competent authority and the question of their automatic replacement by the laws in force in the Districts of Nowgong and Sibsagar would not arise.

14. Article 14 has been interpreted in several decisions of the Supreme Court. Its import and significance has been brought out in these cases. Its meaning is not now a matter of speculation. The principles which may be kept in view when the constitutionality of law is called into question, have also been defined in these cases. The first important principle is that the presumption is always in favour of the constitutionality of the impugned enactment and the burden is upon him who attacks it to show That there has been a clear transgression of the constitutional principles. This principle was enunciated in - 'Middleton V. Texas Power & Light Co.' (1919) 249 US 152 at p. 157 (A), in the following terms:

It must be presumed that a legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds.

It was followed in - 'Charanjit Lal v. Union of India' : [1950]1SCR869 . The rule has also been adhered to in subsequent decisions of the Supreme Court.

Starting with the above presumption, it has to be seen whether article 14 would be infringed if the laws which were applicable to the excluded areas are allowed to remain in force in that area after its exclusion from the area of Schedule VI. Article 14 forbids the State from denying to any person equality before the law or the equal protection of the laws within the territory of India, This article corresponds to section 1 of the Fourteenth Amendment to the Constitution of the United States of America which lays down that no state shall deny to any person within its jurisdiction equal protection of the laws. The amendment guarantees equal protection before laws. Article 14 adds to that guarantee by prohibiting denial of equality before the law. It thus places greater emphasis on equality than even section 1 of the Fourteenth Amendment.

Equality is opposed to discrimination, Discrimination amongst individuals or classes of individuals in laws or in regard to the protection before the laws is prohibited. Arbitrary distinctions are ruled out. But the guaranteed equality must not be confused with uniformity. The article does not provide for or aim at uniform laws in the whole of the country. It is not even its remotest implication. Uniformity of laws in a country so big as India is impossible to achieve. It is inconceivable. The conditions in different parts of the country are so different that uniform laws cannot be regarded as a practicable proposition. The entire scheme of the Constitution points to that conclusion. The States have long list of matters on which they can legislate. In these matters and also in matters in the concurrent list there can be, and in fact, is great diversity of legislative provisions. Central legislation also need not be uniform In regard to the whole of the country or the entire population. Guaranteed equality of article 14 is consistent with promulgation of different laws in different areas or territories. There can be no equality between people not similarly circumstanced. Equality before the law or equal protection of the laws presumes equality in other respects of those to whom the law is to apply.

In - 'Missouri v. Lewis' (1880) 101 US 22 (C), it was laid down that the equal protection clause of the Fourteenth Amendment did not prevent the application by a State of different laws and different systems of judicature to its various local subdivisions. The constitutionality of a law providing a special Court of appeal with exclusive jurisdiction for the City of St. Louis and a few specified counties was in question. The Supreme Court held that

there is nothing in the Constitution to prevent any State from adopting any system of laws or judicature it sees fit for all or any part of its territory....The Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies ....Diversities which are allowable in different States are allowable in different parts of the same State.

This case is a clear authority for the proposition that there was nothing in the equality clause which required uniformity of laws throughout the State. The whole of section 1 of the Fourteenth Amendment is incorporated in Article 14. It should therefore carry the same meaning and it may be said that the mere fact that a law is limited in its application to all the inhabitants of a particular area is not enough for holding that it offends against Article 14 of the Constitution.

15. Article 14 came to be interpreted first in the decision in : [1950]1SCR869 . In that case Mukherjea J. after a consideration of the American decisions bearing on the interpretation of the Fourteenth Amendment of the Constitution of the United States interpreted it in the following terms:

It must be admitted that the guarantee against the denial of equal protection of laws does not mean that identically the same rules of law should be made applicable to all persons within the territory of India in spite of differences of circumstances and conditions. As has been said by the Supreme Court of America 'equal protection of laws is a pledge of the protection of equal laws,' (See - 'Yick Wo v. Hopkins' (1885) 118 US 356 at p. 369 (D)), and this means 'subjection to equal laws applying alike to all in the same situation.' (Vide - 'Southern Rail-way Co. v. Greene' (1909) 216 US 400 at p. 412 (E)). In other words, there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is the same.

I am unable to accept the argument of Mr. Chari that a legislation relating to one individual or one family or one body corporate would 'per se' violate the guarantee of equal protection rule. There can certainly be a law applying to one person or to one group of persons and it cannot be held to be unconstitutional if it is not discriminatory in its character. (See Willis Constitutional Law, p. 580). It would be bad law 'if it arbitrarily selects one individual or a class of individuals, one corporation or a class of corporations and visits a penalty upon them, which is not imposed upon others guilty of like delinquency.' (See -'Gulf C. & S. P. R. Co. v. Ellis' (1896) 165 US 150 at p. 159 (P)). The Legislature undoubtedly has a wide field of choice in determining and classifying the subject of its laws, and if the law deals alike with all of a certain class, it is normally not obnoxious to the charge of denial of equal protection; but the classification should never be arbitrary. It must always rest upon some real and substantial distinction bearing a reasonable and just relation to the things in respect to which the classification is made; and classification made without any substantial basis should be regarded as invalid. See -'(1909) 216 US 400 at p. 412 (E)'.

The case in which the law was so enunciated was an extreme case of its kind. It was directed against one particular company and imposed upon its share-holders some burdens and disabilities on the ground of mismanagement and neglect of duty on the part of those in charge of the undertaking. A majority of the learned Judges found the legislation constitutional on the ground that there was a reasonable basis for distinctive treatment. Patanjali Sastri J., as he then was, was in the dissenting minority. He did not agree with the conclusion arrived at by a majority of the Judges. His view was that the Act in question was discriminatory in character and within the constitutional mischief of article 14. But he did not place any different interpretation on article 14. His view was that

it is undeniable that equal protection of the laws cannot mean that all laws must be quite general in their character and application. A legislature empowered to make laws on a wide range of subjects must of necessity have the power of making special laws to attain particular objects and must, for that purpose, possess large powers of distinguishing and classifying the persons or things to be brought under the operation of such laws, provided the basis of such classification has a just and reasonable relation to the object which the Legislature has in view.

It is clear that his interpretation of article, 14 was virtually the same as that of Mukherjea J. There was thus no difference between the learned Judges on the interpretation of Article 14.

The view expressed in - 'Charanjit Lal's case (B)', has been adhered to in subsequent decisions of the Supreme Court. In - 'Lachmandas Kewalram v. State of Bombay : 1952CriLJ1167 it was held that equal protection of the laws under Article 14 relates to persons in the same situation & in the same circumstances claiming that the same laws should be applied to them. When disposing of - 'Kedar Nath Bajoria v. The State of West Bengal', and - 'Hari Ram Vaid v. State of West Bengal' : 1953CriLJ1621 by one judgment (the latest decision on the point) the learned C. J. of the Supreme Court summed up the position as follows:

Now, it is well settled that the equal protection of the laws guaranteed by Article 14 of the Constitution does not mean that all laws must be general in character and universal in application and that the State is no longer to have the power of distinguishing and classifying persons or things for the purposes of legislation. To put it simply, all that is required in class or special legislation is that the legislative classification must not be arbitrary but should be based on an intelligible principle having a reasonable relation to the object which the legislature seeks to attain. If the classification on which the legislation is founded fulfils this requirement, then the differentiation which the legislation makes between the class of persons or things to which it applies and other persons or things left outside the purview of the legislation cannot be regarded as a denial of the equal protection of the law, for, if the legislation were all-embracing in its scope, no question could arise of classification being based on the intelligible differentia having a reasonable relation to the legislative purpose.

This statement of the law was agreed to by 3 other learned Judges of the Supreme Court. Previous cases bearing on the interpretation of Article 14 were all considered in this case.

Bose J. who differed from the conclusion arrived at by the majority in this case fully accepted the principles laid down in the decisions of the Supreme Court which had gone before, He also agreed to the classification test that had been laid down in those cases. But he found the Act in question unconstitutional as by section 4 (1) it empowered the Provincial Government to pick out cases from among the specified classes and to send them to Special Courts and thus discriminate between man and man in the same class. The difference therefore was only in the application of the test to the facts of the case.

16. It may therefore be stated that all that Article 14 requires in the words of the learned C. J. of the Supreme Court is that in class or special legislation the legislative classification must not be arbitrary but should be based on an intelligible principle having a responsible relation to the object which the Legislature seeks to attain.

17. The contention raised is that immediately certain areas were excluded from the operation of Schedule VI by Notification No. TAD/31/50/ 150 dt. 13-4-1951, all the inhabitants of the excluded areas including Sarupathar Mouza in Which the deceased was killed rose to the level of the other inhabitants of the Districts of Nowgong and Sitasagar. It is pointed out that the object of exclusion of a part of the Mikir Hills area from the Autonomous District was to integrate it partly with Nowgong and partly with Sibsagar district according to the geographical situation of its parts, The basis of exclusion was that there was no reason left for discrimination between the part excluded from the Autonomous District and the other parts of the Districts of Nowgong and Sibsagar.

Mr. Bania thinks that this follows from the mere fact of the exclusion of the area in question from the area of the Mikir Hills Autonomous District. I do not think that the inference that the learned Counsel draws from the fact of exclusion of the area from the Mikir Hills Autonomous District is justified. The Notification No. TAD/31/50/150 dt. 13-4-51 by which this area is left out from the Mikir Hills Autonomous District does not state the reasons for the exclusion. The notification was issued by the Governor after considering the report of the Commission appointed by Notification TAD/R/31/50 dt. 3rd October, 1950. Reasons for the exclusion may have been given in the report of the Commission. We have not been referred to the report of the Commission at all in support of the contention raised. In the absence of any evidence bearing on the reasons for the exclusion it is not possible to hold that the reason for the exclusion of all the areas specified in the notification was that the population of those areas was found to have advanced to such an extent that they could be regarded as on a level with the rest of the population of the Districts of Nowgong and Sibsagar.

The Scheduled Areas (Assimilation at Laws) Act, 1953 has already provided for the application of the laws which are in force in the Districts of Nowgong and Sibsagar to areas specified in the Schedule (areas excluded from the Mikir Hills. Autonomous District) from the appointed day which has not so far been fixed. It would appear from a perusal of the Schedule that the areas specified in it are mostly forest areas. This is suggestive of the fact that there may be other reasons also for the exclusion of the area from the Mikir Hills Autonomous District. We have in any case no basis for holding that exclusion of the areas in question was based on any express finding that the entire population of the areas had reached a stage of development not different from that of the rest of the population in the two districts of Nowgong and Sibsagar and that immediate assimilation of the ordinary laws has become imperative.

In fact the provisions in the Scheduled Areas (Assimilation of Laws) Act, 1953, have to take effect from the appointed day which has to be notified by the Central Government. It has not so far been notified. Section 4 embodies transitional provisions. This section authorises the Central Government and the Government of the State of Assam to direct by order that during such period not exceeding 12 months from the appointed day, as may be specified in the order, any law which immediately before the appointed day was in force in the Scheduled Areas (excluded from the Autonomous District) shall be deemed to have continued to be in force therein or any specified part thereof, and may further likewise direct that any law which would have extended to. or come into force in the Scheduled Area on the appointed day, shall not be deemed to have extended thereto or come into force therein on any specified part thereof. The provisions contained in the Section thus leave the power with the Central Government and the State of Assam to defer the assimilation of laws as provided for in section 3 of the Act for another period of 12 months from the appointed day. The object is to bring about the change gradually. Abrupt action is sought to be avoided for obvious reasons.

Section 5 provides that

notwithstanding anything contained in Section 3, all suits, cases and other legal proceedings between parties all of whom belong to the Scheduled Tribes specified in Item 3 of Part I - Assam, of the Schedule annexed to the Constitution (Scheduled Tribes) Order, 1950 or such other tribe or tribes, as may be specified in this behalf, shall be tried and continue to be tried under the Rules for the Administration of Justice and Police in the Sibsagar and Nowgong Mikir Hills Tracts as if this Act had not been passed.

The effect of the provision is that the Rules for the Administration of Justice and Police which applied to Mikir Hills before the formation of the Autonomous District would continue to apply notwithstanding the coming into force of the Scheduled Areas (Assimilation of Laws) Act, 1953, to suits, cases and legal proceedings between parties all of whom belong to the Scheduled Tribes specified in item 2 of Part I - Assam, of the Schedule annexed to the Constitution (Scheduled Tribes) Order and any other tribes that may be specified. This indicates that no such sweeping decision so far has been arrived at, that all the tribes inhabiting the area have reached a stage of development which would justify an immediate claim to uniformity of laws with the rest of the area of the districts of Nowgong and Sibsagar. There is no denying the fact that till their exclusion they formed a class by themselves. They had distinctive characteristics justifying separate treatment.

Their special laws had found justification in their backward condition and in geographical, historical and administrative reasons. The tribal people have their own way of life. They are accustomed to it and may not abruptly be forced to depart from it by legislation, The work of uplift has to be gradual. Any hurried steps taken in an area though with the best of intentions, may lead to complications. The failure on the part of the Government to assimilate the laws in force in the Districts of Nowgong and Sibsagar Immediately from the date of the exclusion of the areas from the Mikir Hills Autonomous District may not be regarded as a thoughtless or inadvertent omission in the circumstances of this case when seen in the light of the provisions of the Scheduled Areas (Assimilation of Laws) Act, 1953. It was a deliberate act and it had ample justification. The basis for discrimination existed and the mere fact of the need for exclusion of the area from the Mikir Hills Autonomous District does not necessarily lead to the conclusion that all need for distinctive treatment in the matter of laws relating to the administration of justice ceased to exist on that date.

The machinery for the assimilation of the ordinary laws has been devised. It will be put in motion as soon as the time is ripe for it. A hurried and mechanical application of the ordinary laws may be fraught with serious consequences. The rules relating to administration of justice and police in the Sibsagar and Nowgong Mikir Hills District therefore cannot be said to have lost their validity in their application to the excluded area within which the offence in question was committed. The exclusion of this area would not bring them within the mischief of Article 14.

18. It has to be borne in mind that if any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed as held by the Supreme Court in - 'Kedarnath Bajoria v. State of West Bengal', (H). Here, there admittedly was need for classification. There are indications in Scheduled Areas (Assimilation of Laws) Act, 1953 which point to the continuance of the need for a certain period. For all practical purposes the period between the date of the exclusion of the area from the Autonomous Mikir Hills District and the date on which the Scheduled Areas (Assimilation of Laws) Act will come into force is the period of transition. The need for a transitional interval was obviously felt. The provision for a period of transition cannot be regarded as unreasonable or arbitrary. The need for it would sustain the impugned classification for a limited period.

There may have been progress in the areas left out. But that should not militate against the provision for an intermediate stage of development justifying the continuance of the old laws for some time. The burden of proving that there was no basis for discrimination was on the appellant who challenged the constitutionality of the law under which he was tried. This he has failed to discharge in the circumstances of this case. The trial held under Rules for the Administration of Justice in Mikir Hills therefore was not Without Jurisdiction. For reasons given above the appeal must fail and is dismissed.

Sarjoo Prosad, C.J.

19. I agree. The Constitutional point raised by Mr. Barua has lost much of its importance after the promulgation of the Scheduled Areas (Assimilation of Laws) Act, 1953. Even during the interim period, that is, after the constitution of the new District and the operation of the Assimilation of Laws Act, I agree, that the laws prevailing in the territory which were the existing laws, would apply; and though I had my doubts, for the present I prefer not to differ from the view that the operation of these laws will not come within the mischief of Article 14 of the Constitution. For aught we know, there may be a rational basis for allowing the old laws to operate in these areas though excluded from the Autonomous Districts by the Act of the Governor.

20. I must also observe that the conviction, and sentence in this appeal err very much on the side of leniency - almost verging on illegality.

21. As the case involves a substantial question of law as to the interpretation of the Constitution, the certificate under Article 132 of the Constitution enabling the appellant to appeal to the Supreme Court of India is hereby granted, as prayed for.

22. Let a copy of the judgment be supplied to the appellant free of costs.

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