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The State Vs. Judhabir Chetri - Court Judgment

LegalCrystal Citation
Subject;Constitution;Narcotics
CourtGuwahati High Court
Decided On
Case NumberCriminal Revn. No. 72 of 1951
Judge
ActsConstitution of India - Article 227; General Clauses Act, 1897 - Sections 3(31) and 6; Assam Opium Prohibition Act, 1947 - Sections 16 and 17(3); Code of Criminal Procedure (CrPC) , 1898 - Sections 39(1)
AppellantThe State
RespondentJudhabir Chetri
Appellant AdvocateD.N. Madhi, Sr. Govt. Adv.
Respondent AdvocateS.K. Ghose and P. Chaudhuri, Advs.
DispositionPetition dismissed
Excerpt:
- - like all other acts the general clauses act applies for purposes of interpretation of the constitution and the provisions contained in it will, therefore, govern the interpretation, unless the context otherwise requires. ghose against the success of the application made by the state is that as in this case notification no. the fact that it is both by name as well as in virtue of his office would not make the special empowerment any the less so. the point is at best a purely technical one......titles.' mr. ghose contends that as in this case the state government has empowered all first class magistrates in assam, and not any magistrate of the first class by name which alone can constitute special empowerment, the notification must be regarded as a notification amounting to a general empowerment. mr. ghose attempted to support his contention by relying upon a decision of the madras high court reported in mahomed kasim v. emperor, a. i. r. 1915 mad. 1159. in that case spencer and seshagiri jj. apparently took the view that 'a notification empowering all second class magistrates to try offences under the opium act was ultra vires the powers given by the act, as its effect is to enlarge the definition of 'magistrate' as given therein.' spencer j. stated : 'it declares that.....
Judgment:

Ram Labhaya, J.

1. This is a petition under Article 227 of the Constitution of India, from the State of Assam. It arises out of a proceeding under Section 16, Assam Opium Prohibition Act, 1947, as amended. The proceeding was initiated by complaint of the Excise Inspector dated 16-8-1948. The learned Magistrate (first class at Tezpur) found that Judhabir Chetri, Opposite Party was a smuggler of opium by habit and also its seller and stockist and on 21-11-1949 ordered his externment from the Province of Assam for a period of 18 months.

2. An appeal was preferred against this order on 7-12-49. The appeal was allowed and the order of the trial Magistrate was set aside by the learned Additional Sessions Judge L.A.D.

3. The State of Assam has invoked the powers of superintendence that this Court is invested with under Article 227 of the Constitution of India with a view to obtaining a reversal of the appellate, and the restoration of the original order.

4. Mr. Ghose, the learned counsel for the Opposite Party, has urged that the jurisdiction or the power of superintendence that this Court has got under Article 227 cannot be invoked in this case. His contention is that the proceeding in this case was initiated in August 1948 a long time before the Constitution came into force. Under Section 17 (3), A. P. O. Act the appellate order was to be final. Before the Constitution came into force, no party to the proceeding had the right to come to the High Court as under Section 224, Govt. of India Act this Court had no jurisdiction to interfere with the order or judgment of any inferior court, if the order was otherwise not subject to appeal or revision. The revisional jurisdiction of the Court under the Code of Criminal Procedure was excluded by the provisions contained in Section 17 (3). The Constitution came into force when the proceeding was at its appellate stage. The appeal was pending. Article 227 of the Constitution would not apply to a pending proceeding as that would involve retrospective application of the Article. He claims that the Article has got no retrospective effect.

5. The question that arises from the argument advanced is whether Article 227 has any retrospective operation and if so to what extent.

6. Article 367 (1) of the Constitution provides that unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of this Constitution, as it applies for the interpretation of an Act of the Legislature of the Dominion of India. The Constitution in the matter of its interpretation is not placed on any higher pedestal than any other Act of the Legislature of the Dominion. Like all other Acts the General Clauses Act applies for purposes of interpretation of the Constitution and the provisions contained in it will, therefore, govern the interpretation, unless the context otherwise requires. There is nothing in Article 227 which excludes the use of the provisions contained in the General Clauses Act for purposes of interpretation. They, therefore, do apply.

7. Section 6 of the General Clauses Act pro

vides amongst other matters that where an

enactment is repealed, the repeal shall not, unless

a different intention appears, affect (1) [Clause (c)] any

right, privilege, obligation or liability acquired,

accrued or incurred under any enactment so repeal

ed; and (2) [Clause (e)] any investigation, legal proceeding or remedy in respect of any such right, privilege,

obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation,

legal proceeding or remedy may be instituted,

continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the

Repealing Act or Regulation had not been

passed.

The section states in a comprehensive way what a repeal shall not affect. It would not affect any right or liability acquired or incurred under any repealed enactment; nor shall it affect any pending investigation or legal proceeding or any remedy in respect of a pending legal proceeding, unless the context shows that the contrary was intended. Put shortly the position is that so far as rights acquired or liabilities incurred and so far as pending proceedings are concerned, the repealing enactment shall be taken not to have been passed. The pending proceedings shall continue to be regulated by the repealed law as if repealing enactment had not come into existence. It follows then that if the Constitution is a repealing enactment, rights and liabilities acquired and accrued and also proceedings pending at the time the repealing Act came into force shall not be affected by anything contained in Article 227 of the Constitution.

8. The Constitution is a repealing enactment within the meaning of Section 6, General Clauses Act. By Article 395 of the Constitution, the Government of India Act, 1935, together with all enactments amending or supplementing it, with the exception of the abolition of the Privy Council Jurisdiction Act was repealed. The effect of this provision is that Section 224, Government of India Act, 1935, was repealed and it is replaced by Article 227 of the Constitution of India. Before the Constitution came into force, the appellatte order passed under Section 17 (3), Assam Opium Prohibition Act, under Section 16 was final. This provision removed the proceeding from the scope of the revisional jurisdiction that this Court may have had under the Code of Criminal Procedure otherwise.

This was what was held by a Division Bench of this Court in Israil Khan v. State, A. I. R. 1951 Assam 106 and this position is not disputed. The parties to the proceeding also had no right to come to the High Court under Section 224, Government of India Act, 1935. The power of superintendence that the High Court had under the Government of India Act, 1935 did not include within its scope any right of interference with an order or judgment of a court subordinate to it, unless the order was otherwise subject to its appellate or revisional jurisdiction. This jurisdiction had to be derived from some other Act and it did not exist. If the decision in the appeal from the original order had been given before the Constitution came into force, the order would have been absolutely final and the High Court would have had no jurisdiction to interfere with it under the Code of Criminal Procedure or under the Government of India Act, 1935.

The repeal of Section 224, Government of India Act, 1935 and its replacement by Article 227 hag conferred on the High Court wider powers. Its jurisdiction has been enlarged. The power of superintendence which the High Court now possesses in. eludes the right of judicial interference in appropriate cases. This is common ground and was so held in A. I. R. 1951 Assam 106. When dealing with the scope of Article 227 of the Constitution the conclusion arrived at by this Court was as follows :

'Even if the judgment or order of the Court or tribunal functioning within the territorial limits of the jurisdiction of the High Court is made final by statute and even if the Court itself is not subject to the appellate jurisdiction of the High Court, its judgments or orders may be interfered with in the exercise of the powers of superintendence of the High Court. The effect of Article 227 of the Constitution is that not only it restores to the High Courts the jurisdiction that was taken away by Section 224(2), Government of India Act, 1935, but it enlarges the powers of superintendence which the High Courts exercised before 1935 by dispensing with the requirement as a preliminary to the exercise of the powers of superintendence that the Court over which this power is sought to be exercised should be subject to the appellate jurisdiction of the High Court and this power is obviously not limited to matters administrative only.'

9. In Bimala Prosad v. State of West Bengal, A. I. R. 1951 cal. 258 (S.b.) it was held that Article 227 of the Constitution gives the High Court a right in appropriate cases to interfere judicially with orders of Courts and tribunals made amenable to its jurisdiction by that Article.

10. Since the jurisdiction can be exercised in appropriate cases and under the circumstances described in Israil Khan v. State, A. I. R. 1951 Assam 106, the parties to a judicial proceeding may in a suitable case invoke this jurisdiction. The remedy that this article makes available is new. It did not exist under Section 224, Government of India Act, 1935, and it partakes of the character of an appeal or revision, though the power of the High Courts under Article 227 is described as one of superintendence. The learned Chief Justice of the Calcutta High Court who delivered the judgment in Bimala Prosad v. State of West Bengal, A. I. R. 1951 cal. 258 (S. B.) observed on this aspect of the question as follows :

'Article 227 although it does not in term give a right to interference with orders, is an Article which does give a right to High Courts to interfere in proper cases and therefore does give rights to the parties to move High Court to vary or reverse orders i.e. to exercise powers similar to those as are exercised in appeal and hence must be construed in the same manner as provisions in a statute would be construed which gave a right to parties to challenge a decision, either by appeal or revision.'

Apart from this it is obvious that anyone invoking the jurisdiction of the High Court under Article 227 would be pursuing a remedy which he did not possess under the Government of India Act, 1935 which was repealed by the Constitution. 'Whether, therefore, Article 227 of the Constitution confers a right in the nature of or similar to the right of appeal or whether it creates a new remedy not available to the parties to a proceeding that was pending, whether in the original or in the appellate Court, by virtue of the provisions contained in Section 6, General Clauses Act, the new right or remedy would not be available to the parties to a pending proceeding.

The repeal could not take away any remedy that was available to the parties to a proceeding pending immediately before the Constitution came into force. Nor could any new remedy be conferred on the parties for the purposes of that proceeding. The result is that the appellate order in the case before us is final and it is not open to challenge under Article 227 of the Constitution of India. If Article 227 is applied to such a proceeding, it would involve giving retrospective effect to it. This could be given only if it was provided for expressly or by necessary intendment which is not the case.

11. The conclusion arrived at is fully supported by authorities. In Colonial Sugar Refining Co., Ltd. v. Irving, (1905) A. c. 369 their Lordships of the Privy Council held that though the right of appeal to His Majesty-in-Council had been taken away by the Australian Commonwealth Judiciary Act, 1903, yet the Act was not retrospective and the right of appeal to His Majesty in a suit pending when the Act was passed was not taken away. In Delhi Cloth and General Mills Go. Ltd. v. Income-tax Commr., Delhi, A. I. R. 1927 p. c. 242 it was held that no right of appeal arose as the decision of the High Court was before 1-4-1926, the date when Act 24 of 1926 conferring the right of appeal came into operation as the Act showed no intention that it was applicable to decisions which had already become final. In the case of the Colonial Sugar Refining Co., Ltd. the right of appeal had been taken away. The Act was not applied to a pending proceeding. In the Delhi Cloth and General Mills' case, the right of appeal was given. In both cases the Acts were not held to have any retrospective effect.

Relying on these pronouncements from their Lordships of the Privy Council it was held by a Special Bench of the Calcutta High Court in Bimala Prosad v. State of West Bengal, A. I. R. 1951 cal. 258 (S. b.) that there are no express words in Article 227 which give the High Court a right to interfere with a right in existence at the time of the passing of the Constitution ; nor is there anything in the Article to indicate that there is such a power by necessary intendment. The article, therefore, does not empower the High Court to interfere with an order under Section 18, Land Acquisition Act, refusing to refer a matter to civil Court which was a final order passed at a time before the Constitution came into force and when the High Court had no power to interfere with such an order under Section 115, Civil P. C.

The same view was taken in an earlier decision of the Calcutta High Court reported in Rishindra Nath v. Sakti Bhusan Ray, A. I. R. 1950 cal. 512. In Rajaram Dadu v. The State, A. I. R. 1951 Nag. 443--a Full Bench decision--it was held that Articles 226 and 227 do not relate to matters of procedure but confer a power upon High Courts to interfere in certain cases. This power cannot be invoked by a person aggrieved by a decision of Court or a tribunal arrived at before these provisions came into force. The jurisdiction of the Court under Article 227 was invoked against a final decision of a civil Judge which had been given before the Constitution came into force. The learned Judges in coming to the above conclusion relied on Keshavan Madhava Menon v. State of Bombay, a decision of their Lordships of the Supreme Court reported in A. I. R. 1951 S. C. 128. In Keshavan Madhav Menon's case the petitioner before their Lordships was the Secretary of the People's Publishing House Ltd. In September 1949 a pamphlet entitled 'Railway Mazdooron Ke Khilaf Nai Zazish' was alleged to have been published in Bombay by the petitioner as the Secretary of the company. The Bombay Government prosecuted him under the Indian Press (Emergency Powers) Act, 1931. During the pendency of the proceeding against him the Constitution came into force on 26-1-1950. He petitioned to the High Court under Article 228 praying that it be declared that Sections 15 and 18 read with Section 2 (6) and (10) of the Indian Press (Emergency Powers) Act, 1931 in so far as they create liability for restrictive measure for a citizen are ultra vires of Article 19(1)(a) and are, therefore, void and inoperative and that the petitioner may be acquitted.

The High Court of Bombay held that the proceeding under the Indian Press (Emergency Powers) Act which were pending at the date of the commencement of the Constitution was not affected, even if the Act was inconsistent with the fundamental rights conferred by Article 19(1)(a) and as such became void under Article 13(1) of the Constitution after 26-1-1950. Their Lordships of the Supreme Court by a majority held, though on grounds different from that which prevailed in the Bombay High Court, that Article 13(1) only had the effect of nullifying or rendering all inconsistent existing laws ineffectual or nugatory and devoid of any legal force or binding effect only with respect to the exercise of fundamental rights on and after the date of the commencement of the Constitution.

It has no retrospective effect and if, therefore, an act was done before the commencement of the Constitution in contravention of the provisions of any law which on the enforcement of the Constitution becomes void, with respect to the exercise of any of the fundamental rights, the inconsistent law is not wiped out so far as the past Act is concerned, for to say that, it will be to give the law retrospective effect. Das J. who delivered the majority judgment observed as follows when dealing with the effect of Article 13(1):

'It will be noticed that all that this clause declares is that all existing laws, in so far as they are inconsistent with the provisions of Part III shall, to the extent of such inconsistency, be void. Every statute is prima facie prospective unless it is expressly or by necessary implications made to have retrospective operation. There is no reason why this rule of interpretation should not be applied for the purpose of interpreting our Constitution. We find nothing in the language of Article 13(1) which may be read as indicating an intention to give it retrospective operation. ''

The conclusion was that even if certain sections of the Indian Press (Emergency Powers) Act had become void by reason of repugnancy to the provisions contained in the chapter on fundamental rights, the pending proceeding for a contravention of the provisions contained in that Act was not affected by the Constitution.

12. A Division Bench of this Court also held in Israil Khan v. The State, A. I. R. 1951 Assam 106, that Article 227 may not be applied retrospectively.

13. For reasons given above my conclusion is that Article 227 has got no retrospective effect and cannot apply to a proceeding which was pending immediately before the date on which the Constitution came into force and the rights of the parties in regard to that proceeding shall be regulated by the law which was in force on the date immediately preceding 26-1-1950.

14. In this view of the matter this petition is incompetent and ought to be dismissed as such without giving any decision on other questions that arise in this case. The rule is discharged.

Thadani C.J.

15. I agree, in the conclusion but would add a few words.

16. One of the points raised by Mr. Ghose against the success of the application made by the State is that as in this case Notification no. 66/48, dated 5-6-1948 empowers all Magistrates of the first class in the State of Assam to exercise powers under Section 17, Assam Opium Prohibition Act of 1947, the empowerment is not a special empowerment as required by Section 16, Assam Opium Prohibition Act, but a general empowerment. Mr. Ghose has referred us to Section 39 (1), Criminal P. C., which is in these terms :

'In conferring powers under this Code the Provincial Government may, by order, empower persons specially by name or in virtue of their office or classes of officials generally by their official titles.'

Mr. Ghose contends that as in this case the State Government has empowered all first class Magistrates in Assam, and not any Magistrate of the first class by name which alone can constitute special empowerment, the notification must be regarded as a notification amounting to a general empowerment. Mr. Ghose attempted to support his contention by relying upon a decision of the Madras High Court reported in Mahomed Kasim v. Emperor, A. I. R. 1915 Mad. 1159. In that case Spencer and Seshagiri JJ. apparently took the view that

'a notification empowering all second class Magistrates to try offences under the Opium Act was ultra vires the powers given by the Act, as its effect is to enlarge the definition of 'Magistrate' as given therein.' Spencer J. stated :

'It declares that the Local Government may empower classes of officials generally by their official titles or persons specially by name or in virtue of their office. When, therefore, a class of officials is invested with powers to try certain offences, it would appear that they are 'generally' empowered. The word 'generally' is in contrast to the word 'specially1 which is used in speaking of individuals.'

17. With all respect, I think, the error in the conclusion of the learned Judges is the result of supposing that first class Magistrates constitute a class of officials. In my opinion first class Magistrates do not constitute a class of officials, but are persons holding an office. The short question for our consideration is whether the notification in question fulfils the requirement of Section 16, Assam Opium Prohibition Act. My answer is in the affirmative. Section 6, Criminal P. C., enumerates the classes of Courts established in India. The heading of the chap. II is 'The Constitution of Criminal Courts and Offices.' It is not disputed that the terms 'Court' and 'Magistrate' are synonymous terms. The word office in the heading of the chapter means the office of a Judge or Magistrate. A Magistrate or Court of the first class Magistrate, therefore, connotes an office and not an official. The word 'Magistrate' is defined in Section 3, Clause (31), General Clauses Act. Clause 31 says :

' 'Magistrate' shall include every person exercising all or any of the powers of a Magistrate under the Code of Criminal Procedure for the time being in force.'

Now, if we substitute for the word 'persons' in Section 39, Criminal P. C., the word 'Magistrates' and for the time being omit the word 'specially' from Section 39 (1), it would read thus :

'In conferring powers under this Code the Provincial Government may, by order, empower Magistrates by name or in virtue of their office or classes of officials generally by their official titles.'

It is not disputed by Mr. Ghose that an empowerment of Magistrates by name or in virtue of their office would amount to a special conferment. I have no difficulty in interpreting the meaning of the words 'classes of officials generally by their official titles.' For instance Secretaries, Undersecretaries and Deputy Secretaries to Government are officials with official titles. A notification empowering all Secretaries or Under or Deputy Secretaries with powers under a statute would be a notification empowering these officials generally by their official titles. Having regard, therefore, to the definition of the word 'Magistrate' in Section 3(31), General Clauses Act, and the connotation of the word 'Magistrate' in chap. II, Criminal P. C., in which manifestly a Magistrate or a Court of Magistrate is regarded as an office and not an official, I think the notification in question fulfils the requirements of Section 16, Assam Opium Prohibition Act, read with Section 39 (1), Criminal P. C.

I do not disagree with the view that if a class of officials by their official titles is invested with powers to try certain offences the empowerment is a general empowerment. But the expression 'class of officials' must not be confused with 'first class Magistrates' who are not a class of officials, but Courts or offices in the same way as a Judge is not an official but an office. A Judge or Magistrate is appointed to or removed from office. Neither bears an official title in the sense that a head of Government Department bears the official title of Secretary to Government.

18. There is a later decision of the Madras High Court reported in Aluga Pillai v. Emperor, A. I. R. 1924 Mad. 256 in which this aspect of the case has been considered. The judgment is short one and I propose to reproduce it in its entirety for I think that instead of supporting the contention of Mr. Ghose, it has the opposite effect. It reads:

'The only point raised in this Criminal Revision case is, that the Magistrate who tried the case, the Second Class Magistrate of Thirumangalam had not been empowered to try cases under the Opium Act 1 of 1878 as required by Section 3 of the Act. We are referred to a Notification of Government published in the Fort St. George Gazette under date 4-6-1915 which empowers the Second Class Magistrates mentioned therein by virtue of their office to try cases under the Opium Act. The Second Class Magistrate of Thirumangalam is mentioned in the list appended to the Notification. We entertain no doubt whatever that this is a 'special empowering' of the person holding that office in virtue of his office within the meaning of Section 39 of the Criminal Procedure Code and would satisfy the requirements referred to by the learned Judges in Mahomed Kasim v. Emperor, (A. I. R. 1915 Mad. 1159).'

19. While it is true that the learned Judges of the Madras High Court in Aluga Pillai v. Emperor, A. I. R. 1924 Mad. 256 have sought to reconcile the previous decision of the same Court to which I have referred, the reconciliation is I think only apparent and not real. In my view it makes no difference that in the notification involved in the later decision of the Madras High Court the names of the Magistrates were also mentioned. Under Section 39 conferment may be by name or in virtue of a person's office. The fact that it is both by name as well as in virtue of his office would not make the special empowerment any the less so. I do not think it is necessary that for the purposes of special empowerment within the meaning of Section 39 the names of the persons must be disclosed even though they hold an office.

Nor is there any substance in the contention of Mr. Ghose that when the Legislature thought fit to say that all District Magistrates and Sub-Divisional Magistrates were competent to exercise powers under the Assam Opium Prohibition Act without empowerment in that behalf, and at the same time said that a First Class Magistrate must be specially empowered the Legislature intended that a First Class Magistrate must be named before he can be said to have been specially empowered. The question of intention is altogether irrelevant. The only relevant question is the true meaning of Section 39, Criminal P. C. If the Notification in question is a Notification specially empowering all First Class Magistrates of Assam to exercise powers under the Assam Opium Prohibition Act, there is nothing more to be said. The view I have taken is also shared by the Allahabad High Court in a case reported in Sundarlal v. Emperor, A. I. R. 1933 ALL. 676. That was a case under Section 110, Criminal P. C. The material part of Section 110, Criminal P. C. is couched in the same language as the material part of Section 16, Assam Opium Prohibition Act. Kendall J. observed :

' The authority of the Government to pass a general order of the kind, while Section 110 only refers to a First Class Magistrate ' specially empowered ' has been questioned. But it is admitted that the question has been decided by a Bench of this Court in favour of the Government's authority, and I am in any case bound by the decision of that Bench. The point is at best a purely technical one.'

Deka, J.

20. I have had the advantage of reading the judgment of my learned brother Ram Labhaya J. and I agree with him that Article 227 of the Constitution of India is not retrospective in its operation and the petition moved in this case may be rejected on that ground alone. But as a matter of fact, the petition raised another important issue which has a material bearing as to the procedure to be adopted in similar cases. The point is whether the Magistrate of the First Class who heard this case and passed the extradition order was specially empowered for exercising the powers under Section 17, Assam Opium Prohibition Act, 1947.

I agree with the Honourable the Chief Justice in the view as expressed in his Lordship's judgment that though the Gazette Notification empowering the First Class Magistrates does not disclose the names of the Magistrates so empowered, the Notification in the Gazette complies with the terms of Section 39, Criminal P. C. and, therefore, is to be regarded as specially empowering within the meaning of Section 16, Assam Opium Prohibition Act and the view expressed by the Additional Judge was wrong to that extent.

21. I agree that the petition may be dismissed and the rule discharged.


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