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Mohammad Mohy-ud-dIn Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1946)48BOMLR740
AppellantMohammad Mohy-ud-din
RespondentEmperor
DispositionAppeal dismissed
Excerpt:
.....army even when they we're serving outside the british dominions. with reference to the east india company's army also, parliament bad passed mutiny acts from time to time, beginning from 1754. it would also appear that the governors and the governors general in india had framed articles of war for the discipline of the native troops maintained by the company. even if this argument should be held to have any force, it would have 110 application to the act of 1833, because, as already stated, the language of section 73 of that act is clearly different from the language of section 43 (referring to the general legislative power). 8. in interpreting section 73 of the act of 1833, it may be useful to bear in mind the provisions of an act passed by parliament in 1823 (4 geo. counsel for..........army even when they we're serving outside the british dominions. with reference to the east india company's army also, parliament bad passed mutiny acts from time to time, beginning from 1754. it would also appear that the governors and the governors general in india had framed articles of war for the discipline of the native troops maintained by the company. the charter act of 1813 validated (by section 97) the articles of war theretofore framed in india and (by section 96) empowered the governments in india to make 'laws and regulations and articles of war for the order and discipline of all officers and soldiers, natives of the east indies or other places within the limits of the said company's charter in their respective services etc.' this section contains no words signifying.....
Judgment:

Patrick Spens, Kt., C.J.

1. This is an appeal against an order of a Full Bench of the Lahore High Court dismissing an application under Section 491 of the Criminal. Procedure Code for the release of one Burhan-ud-Din. Bnnhnn-ud-Din is a member of the ruling family of Chitral, an Indian State adjoining the North-West Frontier Province. The Ruler of Chitral has in recent times been recognised by His Majesty the King Emperor as a Ruler of an Indian State. Bnrhan-ud-Din is thus admittedly not a British subject 5 he, however, became an Indian Commissioned Officer in 1936 and was attached to the 2/10 Balueh Regiment of the Indian Army in which he attained the rank of Captain. In September-October, 1945, he was suspected of having committed offences under Sections 121 and 302 of the Indian Penal Code; and, pending investigation and disposal of these charges, he was kept in military custody according to the usage of the service. A general court-martial for the trial of Burhan-ud-Din was constituted in November, 1945, and he was arraigned before the court-martial in December, 1945, on the charges above referred to. The proceedings before the court-martial were going on when the application under Section 491 of the Criminal Procedure Code was filed before the High Court at Lahore, on December 20, 1945.

2. The offences charged against Burhan-ud-Din were alleged to have been committed in Rangoon and Singapore. It was submitted in support of the habeas corpus application that Burhan-ud-Din who was not a British subject was not amenable to the criminal laws of British India for offences alleged to have been committed outside British India and it was contended that so much of Section 41 of the Indian Army Act, 1911, as purported to confer jurisdiction en a court-martial to try non-British subjects for offences committed by them beyond British India, was ultra vires the Indian Legislature. It was accordingly urged that his detention in military custody for the purposes of the said trial was illegal. On behalf of the Crown, it was maintained that Section 41 of the Indian Army Act was in its entirety intra vires the Indian Legislature and that the detention of Burhan-ud-Din was legal. The High Court accepted this contention of the Crown and dismissed the application. The learned Judges granted a certificate to the effect that the case involved a substantial question of law as to the interpretation of the Government of India Act, 1935, and the Government of India (Adaptation of Indian Laws) Order, 1937, and on the basis of this certificate this appeal has been preferred.

3. When opening the case, counsel for the appellant conceded that no question as to the interpretation of the Government of India Act, 1935, arose in the case. The plea that Section 41 of the Indian Army Act, 1911, was to a certain extent invalid was based on Section 22 of the Indian Councils Act, 1861, with, some amendments made in the years 1865 and 1869, which was the law in force at the time the Indian Army Act of 1911 was enacted by the Indian Legislature. The Contention of the Crown in support of the validity of Section 41 of the Indian Army Act was based on Section 73 of the Government of India Act of 1833. It was thus clear that nothing turned on the Government of India Act, 1935. As regards Orders in Council under that statute, there was no doubt an alternative contention urged by the Advocate General before the High Court on the terms of the Adaptation Order of 1937. In the view that the learned Judges took on the main question, it became unnecessary to deal with this alternative argument and two of the Judges accordingly said nothing in their judgments about it. Abdul Rashid J. overruled this contention of the Advocate General; but, as he too agreed with the view of the other two Judges on the main question, his observations, on the effect of the Adaptation Order must be taken to be obiter, Before us, it was not found necessary to urge this contention based on the Adaptation Order. In the absence of any question involving the interpretation of the Government of India Act, 1935, counsel for the appellant could only rely on his petition asking for leave to urge other contentions and, in the circumstances of the case, he was granted leave to argue the point as to the validity of Section 41 of the Indian Army Act, 1911.

4. Two contentions were urged in support of the appeal. It was argued that Section 73 of the Government of India Act of 1833 ceased to be in operation after. the enactment of the Indian Councils Act of 1861, that the validity of Section 41 of the (Indian Army Act of 1911 must accordingly be determined with reference to the. terms of Section 22 of the Indian Councils Act of 1861 (as amended in 1865 and 1869), and that on the true construction of Section 22, the Indian Legislature had no power to enact a law prescribing a punishment for any offence committed by a non-British subject outside British India, Alternatively, it was contended that even if the question should be determined with reference to the terms of Section 73 of the Government of India Act of 1833, the power of the Indian Legislature thereunder was no wider than under Section 22 of the Indian Councils Act of 1861.

5. It is difficult to follow the contention that Section 73 of the Government of India Act of 1833 ceased to be operative after 1861. The 'Indian Councils Act of 1861 repealed only certain specified sections of the statute of 1833 and the continuance of the remaining provisions of the older statute was placed beyond all doubt by an express provision in the latter part of Section 2 to the effect that'' all other enactments whatsoever now in force with relation to the Council of the Governor General of India.., .shall, save so far as the same are altered by or are repugnant to this Act, continue in force and be applicable to the Council of the Governor General of India ... under this Act'. Section 73 of the Act of 1883, not being one of the sections specifically repealed, would thus be one of the provisions continuing in operation. This conclusion is confirmed by the express reference to that section in one of the provisos to Section 22 of the Act of 1861. 'While the body of Section 22 authorised the Governor General in Council in general terms 'to make laws and regulations for all persons, whether British or native, foreigners or others, and for all courts of justice whatever and for all places and things whatever within the said territories, etc.'', the provisos precluded the Governor General in Council, in the exercise of this general power, from making any laws or regulations 'which shall repeal or in any way affect any of the provisions' of various Acts of Parliament. Among the statutes thus placed beyond the power of the Indian Council to affect were parliamentary enactments 'for punishing mutiny and desertion in Her Majesty's Army or in Her Majesty's Indian Forces'. To this exception, a counter exception was made in so far as the Governor General in Council might exercise the powers conferred by Section 73 of the Government of India Act, 1833. This makes it clear that Parliament, even while enacting the Indian Councils Act of 1861, contemplated the continued exercise by the Indian Council of the powers conferred on it by Section 78 of the Act of 1833. It seems to have been contended before the High Court that Section 73 of the Act of 1833 was repugnant to Section 22 of the (Indian Councils Act of 1861 and must, therefore, be deemed to have ceased to be in operation after 1861, at least in respect of the words now relevant, because the concluding words of Section 2 of the Indian Councils Act of 1861 saved earlier enactments only in so far as they were not repugnant to the Act of 1861. This contention was not pressed before us as it is obviously untenable. Section 22 of the Act of 1861 substantially reproduced Section 43 of the Act of 1833, and if both Sections 43 and 73 could have subsisted together in the Act of 1833, there was no reason why they should not co-exist after 1861. Section 22 of the Act of 1861 (like B. 43 of the Act of 1833) dealt with the general legislative powers of the Governor General in Council, while Section 73 of the Act of 1833 dealt with a special case, namely, laws governing the armed forces of the Indian Government. There) is accordingly no basis for the argument of repugnancy. Before us, appellant's counsel put the argument in a somewhat different form. He contended that in the earlier Act, the power conferred by Section 73 was only an illustration of the general power of legislation conferred by Section 43 and that accordingly any exercise of the power under Section 73 was subject to fill the limitations affecting the exercise of the general legislative powers imposed by Section 43, and that if the power conferred by Section 73 continued in force, after 1861, it must similarly be subject to the limitations of Section 22 of the Act of 186L which section had replaced Section 43 of the earlier Act. It will be convenient to consider this argument when dealing with the second head of the appellant's contention.

6. Turning now to the Government of India Act of 1833, it must be noticed that Section 73 contained express words connoting a wider territorial, operation than that which the words found in Section 43 would authorise. Section 43, which conferred the general legislative power, empowered the Governor General in Council to make 'laws and regulations for all persons, whether British or native, foreigners or others... .for all places and things whatsoever within and throughout the whole and every part of the said territories'. The territorial ambit was thus clearly limited. Some extention was provided by another clause which authorised legislation governing all servants of the Company even 'within the dominions of Princes and States in alliance with the Company.' Section 73, which authorised the framing of Articles of War 'for the government of the native officers and soldiers in the military service of the Company and for the administration of- justice by courts-martial', provided that the Article so made should have authority 'over all the native officers and soldiers in the said military service to whatever Presidency such officers and soldiers may belong or wheresoever they may 'be serving'. This provision not only contained no words of territorial limitation, but, by the use of the italicised words 'wheresoever they may be serving' clearly indicated an intention to make the Articles binding on the officers and soldiers independently of any territorial limitation. Appellant's counsel rightly placed Ho reliance on the words 'to whatever Presidency such officers and soldiers may belong', because these were not words indicative of a territorial limitation, but were only used in view of the fact that each of the three Presidencies had a separate army at that time. But he contended that as a matter of interpretation the words 'wheresoever they may be serving' must be construed as being subject either to the same territorial limitation as is found in Section 43 or at least as being limited to India. Assuming that a subordinate legislature cannot validly make laws imposing punishments, on non-subjects for offences committed by them outside the territorial limits of its jurisdiction, there can be no doubt that Parliament can, if it so chooses, authorise even a subordinate legislature to legislate with extra-territorial effect. The only question, therefore, is whether according to the plain meaning of the words used in Section 73, such power was conferred on the Indian Legislature.

7. It was contended that there was a presumption against construing even general words in an Act of Parliament as intended to have extra-territorial effect or authorise extra-territorial legislation. The passages relied on in this connection from Maxwell's Interpretation of Statutes do not go the length necessary for the appellant's case. It is true that every statute is to be so interpreted, so far as its language admits, as not to be inconsistent with the comity of nations or with the established rules of international law (Maxwell on the Interpretation of Statutes, 8th Edn., p. 130). Whatever may be the rule of international law as regards the ordinary citizen, we have not been referred to any rule of international law or principle of the comity of nations which is inconsistent with a State exercising disciplinary control over its own armed forces. when those forces are operating outside its territorial limits. Indeed, there may be greater reason for recognising such power when the army is operating in enemy country than when it is within its own country. In this view, it is very doubtful whether in a case like the present, there is any presumption necessitating or justifying a limited construction of the general words used in the statute. Further, it is recognised that the presumption, if any, will give way Whenever the intention of Parliament is clear or the nature of the subject-matter or the history of the legislation relating to it justifies the assumption of extra-territorial jurisdiction. Our attention has been drawn to several Mutiny Acts passed in England from time to time since the closing years of the 18th century. They make it clear that Parliament intended to make the Acts as well as Articles of War framed by the King binding on the soldiers and officers of the English Army even when they we're serving outside the British Dominions. With reference to the East India Company's army also, Parliament bad passed Mutiny Acts from time to time, beginning from 1754. It would also appear that the Governors and the Governors General in India had framed Articles of War for the discipline of the native troops maintained by the Company. The Charter Act of 1813 validated (by Section 97) the Articles of War theretofore framed in India and (by Section 96) empowered the Governments in India to make 'laws and regulations and Articles of War for the order and discipline of all officers and soldiers, natives of the East Indies or other places within the limits of the said Company's Charter in their respective services etc.' This section contains no words signifying either a limited or an extended territorial operation. Counsel for the appellant contended that as the power under this section is described to be 'as full and ample' as the power possessed by the Governments in India to 'make any other laws or regulations for the Government of the natives of the several territories subject to the said Presidencies', the section must be construed as subject to the same territorial limitation as the general legislative power. Even if this argument should be held to have any force, it would have 110 application to the Act of 1833, because, as already stated, the language of Section 73 of that Act is clearly different from the language of Section 43 (referring to the general legislative power).

8. In interpreting Section 73 of the Act of 1833, it may be useful to bear in mind the provisions of an Act passed by Parliament in 1823 (4 Geo. IV, e. 81) entitled 'An Act to consolidate and amend the laws for punishing mutiny and desertion of officers and soldiers in the service of the East India Company'. Section 62 of this Act saved all matters 'enacted or declared respecting officers or soldiers being natives of the East Indies or other places within the limits of the said Company's Charter' contained in the Charter Act of 1813, and Section 63 enacted 'that whenever any portion of such native troops shall be serving in any country or place out of the possessions or territories which are or may be under the Government of the said United Company, whether such be the Dominions of His Majesty or elsewhere, on the trial of all offences committed by any native officer or soldier or follower, reference shall be had to the Articles of War framed by the Government of the Presidency to which such native officer, soldier, or follower shall belong'. It seems to us reasonably clear that it was the sense of the words 'serving in any country or place out of the possessions, or territories under the Government of the said United Company etc.' in Section 63 of this statute that was sought to be reproduced by the words 'wheresoever they may be serving' in Section 73 of the statute of 1833. That Parliament contemplated the punishment of officers and soldiers of the Indian Army even in respect of offences committed outside the territories under the Government of the East India Company is made clear by Section 7 & 8 Vic. e. 18 . We thus see no reason or justification for limiting the scope of the very general words 'wheresoever they may be serving' used in Section 73 of the Act of 1833.

9. Another argument in support of giving the section a limited operation was based on the use of the words 'native officers and soldiers' in. Section 73. It was contended that Burhan-ud-Din was not a 'native' officer within the meaning of the section. The High Court held that the word 'native' Avas here used in coutradistruction to British (or European) as both sets of people were employed in the Company's army. Alternatively, they held that the word 'native' in this section had the same meaning as the expression 'natives of the East Indies or of other territories within the limits of the Company's Charter' found in other parliamentary enactments relating to the Indian Army. Both these interpretations would bring Burhan-ud-Din within the operation of the section. Counsel for the appellant took strong- exception to the view that the word 'native' was used in a racial sense and he insisted that it must have been used in a territorial sense and as the descriptive words 'of the East Indies and of other territories within the limits of the Company's Charter' found in the Charter Act of 1813 had not been repeated in Section 73 of the Act of 1833, he argued that it was reasonable to infer that the word 'native' referred either to the natives of the Company's possessions or at best to the natives of India. This view would, according to him, exclude persons in the position of Burhan-ud-Din, because he was not a native either of British India or of India (taking Ohitral not to have been a part of India in 1833). 'We are not able to aceede to this contention.

10. It cannot be denied that in more than one parliamentary statute the words 'native' and 'British' were used as antithetical terms. Section 43 of the Government of India Act of 1833 referred to laws and regulations to be made 'for all persons, whether British or native, foreigners or others'. Section 22 of the Indian Councils Act of 1861 repeated the same language. In the Charter Act of 1818, Section 55, in providing for the payment of the charges and expenses of raising and maintaining the forces of the East India Company, spoke of 'the forces as well European as native'. The scheme of the parliamentary enactments relating to the Indian Army shows that a distinction has always been maintained between the British element in those forces and the non-British element, in respect of the Articles of War by which they were to be generally governed. Section 1 of 7 & 8 Vic. e. 18, in referring to the officers and soldiers in the service of the East India Company, grouped them as (i) officers, soldiers and so forth, not being natives of the East Indies or other places within the limits of the Company's Charter, and (ii) officers, soldiers and so forth, being natives of the East Indies or other places within the limits of the Company's Charter. It, therefore, seems to us not unreasonable to hold that the expression 'native officers and soldiers' in Section 73 was intended to refer to the non-British or non-European members of the Company's army. Even if it should be held that the word 'native' must be understood as having a territorial significance, that is, as meaning the native of some place or country, it seems to us that the territory contemplated when using the word 'native' must have been the same as was connoted by the words 'natives of the East Indies or other places within the limits of the Company's Charter'. If a limitation as to the locality is to be suggested at all, it may with some show of reason be argued that the word 'native' can refer only to natives of the territories under the administration of the Company, but counsel for the appellant obviously felt that this would be too restricted an interpretation to suggest, because it was impossible to maintain that the Company's non-European soldiers were recruited only from the areas within the Company's Government. If such a limitation based on the territorial limits of the authority of the Company is ignored, no particular reason has been suggested why India as a mere geographical unit should have been the territory intended. On the other hand, the Advocate-General pointed out that in later enactments of Parliament, it had been clearly assumed that the Governor-General in Council had authority to frame Articles of War is respect of such officers and soldiers of the Company's army as could be comprehended in the description 'natives of the East Indies or other territories within the limits of the Company's Charter' (of, the concluding words of Section 7 of 3 & 4 Vic. e. 37); and as this power of the Governor General in Council could be traced only to Section 73 of the Government of India Act of 1833, he argued that the assumption made by Parliament in the later Act might legitimately be used as an aid in interpreting the general or ambiguous language of the earlier Act. In support of this contention, he relied on the observation in Maxwell on the Interpretation of Statutes (8th Edn., pp. 32 and 33), the observations of Lord Buckmaster in Ormond Investment Co. v. Beits [1928] A.C. 148 and certain, observations in Admiralty Commissioners v. Valverda (Ownervs [1988] A.C.W. 173. There are one or two other statutory provisions which seem to us to give a clear indication that the word 'native', when used as an adjective in similar statutes, was used in the same sense as the wider expression 'natives of India and other territories in-eluded in the Company's Charter', it having been found convenient to add these extra words whenever the word 'native' was used in the noun form. In 3 & 4 Vic. e. 37, Section 7 referred to Articles of War enacted by the Government of India 'respecting officers or soldiers being natives of the East Indies or other places within the limits of the Company's Charter'. In the very next section, the same class of persons was described by the words 'any native officer or soldier'. In 4 Geo. IV, e. 81, we find in one and the same Section 62 reference in the earlier portion to officers or soldiers being natives of the East Indies or other places within the limits of the Company's Charter and at the end of the same section these persons are referred to as ' such native officers and soldiers'. Both kinds of description are also found in the concluding portion of Section 1 of 12 & 13 Vic. e. 43. The conclusion that the expression 'native officers and soldiers' had no different significance from the words 'officers and soldiers being natives of the East Indies or other places within the limits of the Company's Charter' is also more consonant to reason than the limited construction suggested on behalf of the appellant, because no reason has been or can be suggested for making a distinction between native officers and soldiers recruited from India and native officers and soldiers recruited outside India, in respect of the application of Articles of War to them, so long as both sets of people were serving in the Indian Army.

11. We are accordingly of the opinion that the impugned portion of Section 41 of the Indian Army Act, 1911, was intra vires the Indian Legislature. The appeal fails and is dismissed.


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