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Emperor Vs. Annaji Balkrishna Barve - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCriminal Appeal No. 170 of 1944
Judge
Reported inAIR1945Bom329; (1945)47BOMLR339
AppellantEmperor
RespondentAnnaji Balkrishna Barve
DispositionAppeal allowed
Excerpt:
.....for making that rule, viz. 7. i concur, and in view of the importance of the question raised, i should like to add a few words. 11. this clearly sets out the scope of the two sub-sections and it has been still more clearly explained by zafrulla khan..........the learned magistrate therefore thought that rule 39(1)(b) was ultra vires and went beyond the rule-making power given to government.2. it was contended before him that even if rule 39(1)(b) could not be framed under any of the paragraphs of sub-section (2), it would be valid if it carried out any of the general objects enumerated in sub-section (1) of section 2, viz. securing the defence of british india, the public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community. but the learned magistrate repelled that argument also on the ground that it was held by the federal court in emperor v. keshav talpade (1943) 46 bom. l.r. 22 ., that sub-section (1) of section 2 cannot be resorted.....
Judgment:

Divatia, J.

1. This is an appeal by the Government of Bombay against the order of acquittal passed by the Presidency Magistrate, Third Additional Court, Bombay, acquitting the accused Annaji Balkrishna Barve of the offence under Rule 39(6) read with Rule 39 (1)(b) of the Defence of India Rules 1939. The charge against the accused was that on January 28, 1943, he had in his possession without any lawful authority or excuse certain documents containing 'prejudicial reports' and that such possession came within Rule 39(1)(b) and was punishable under Sub-rule (6). The learned Magistrate held on the evidence that out of the three documents, exhibits F G and H, relied on by the prosecution, exhibits F and G were 'prejudicial reports' within the definition of that term in Rule 34(7). Exhibit F is a Congress bulletin and exhibit G consists of certain leaflets addressed to the police force. He, however, held that Rule 39(1)(b), was ultra vires inasmuch as it went beyond the powers of the Central Government to frame rules under sub-s (2) of Section 2 of the Defence of India Act. According to the learned Magistrate the only power which the Central Government had for making rules as to possession of information or documents was derived from two paragraphs, viz. (iv)(b) and (xxv) of sub-section (2) of Section 2. That sub-section says that without prejudice to the generality of the powers conferred by sub-section (1) the rules may provide for, or may empower any authority to make orders providing for, all or any of the following matters. Then thirty-five matters are enumerated. The matter relating to possession of information, according to the learned Magistrate, comes only under paragraph (iv)(b), which speaks of possession without lawful authority or excuse of information likely to assist the enemy and paragraph (xxv) which deals with possession of certain explosives, vessels, apparatus etc. Under paragraph (iv)(b) Government has power to frame rules only with regard to the particular kind of information mentioned in that paragraph, viz. information likely to assist the enemy. 'Prejudicial report' as defined in Rule 34 does not include information likely to assist the enemy and there was no paragraph in Section 2(2) of the Act relating to possession of such reports. The learned Magistrate therefore thought that Rule 39(1)(b) was ultra vires and went beyond the rule-making power given to Government.

2. It was contended before him that even if Rule 39(1)(b) could not be framed under any of the paragraphs of sub-section (2), it would be valid if it carried out any of the general objects enumerated in Sub-section (1) of Section 2, viz. securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community. But the learned Magistrate repelled that argument also on the ground that it was held by the Federal Court in Emperor v. Keshav Talpade (1943) 46 Bom. L.R. 22 ., that Sub-section (1) of Section 2 cannot be resorted to for justifying a rule which went beyond the rule-making powers given by Sub-section (2). The passage in Talpade's case which the learned Magistrate had in mind was as follows (p. 47) :

The Legislature having set out in plain and unambiguous language in paragraph (x) the scope of the rules which may be made providing for apprehension and detention in custody, it is not permissible to pray in aid the more general words in Section 2(1) in order to justify a rule which so plainly goes beyond the limits of paragraph (x) ; though if paragraph (x) were not in the Act at all, perhaps different considerations might apply.

3. Those observations were made with reference to the facts of that case where the accused was kept under detention under Rule 26 of the Defence of India Rules. It was held that the rule was ultra vires inasmuch as it gave power to Government to detain a person if it was only satisfied that he did certain prejudicial acts, whereas the parent authority for making that rule, viz., paragraph (x) of Sub-section (2), empowered Government to apprehend and detain a person if he was reasonably suspected of having acted in a manner prejudicial to public safety etc. As Rule 26 went beyond the wording of paragraph (x), which required that the person must be reasonably suspected, it was held to be ultra vires. It was stated that in such a case it was not permissible to pray in aid the more general words in Section 2(1) of the Act. This passage in their Lordships' judgment has been explained by Zafrulla Khan J. in the subsequent decision of King, Emperor v. Sibnath Banerjee [1944] F.C.R. 1, where it is observed (p. 27):

It would not be correct to say that Section 2, of the Defence of India Act confers two kinds of rule-making powers, one under the first sub-section and the other under the second subsection. The rule-making power is conferred under the first sub-section and all that the Second sub-section does is to set out the conditions under which rules in respect of the particular subject-matters enumerated in its paragraphs may be made in the exercise of powers conferred under the first sub-section.

4. It is clear from these observations that the rule-making power is given under Sub-section (1) itself. There is no separate power given under Sub-section (2) which simply prescribes the conditions under which certain rules in respect of particular subject-matters may be made. In other words, certain matters, although they are included in the general objects stated in Sub-section (1), have been particularised and rules with regard to those matters should be made in conformity with the provisions of the paragraphs in Sub-section (2). The question, therefore, is what is the subject-matter in the various paragraphs of Sub-section (2) relating to possession. Is it possession of information or document in general or possession of information as is likely to assist the enemy? If it is the former, it may be said that provision having been made for making rules for only one kind of such information, viz., information likely to assist the enemy, no rule can be made for any other kind of information or document or report such as merely prejudicial reports. If it is the latter, rules can be made under Sub-section (2) relating to information as is likely to assist the enemy and for possession of all other kinds of information or reports that can be made if they fall within any of the general heads stated in Sub-section (7).

5. The learned Advocate General contends that the subject-matter of the paragraphs in Sub-section (2) is not merely possession or information, but the possession of a document of a particular kind, viz. those which are likely to assist the enemy and that the possession of a prejudicial report falls under Sub-section (1). He contends in the alternative that Rule 39(1)(b) falls also within paragraph (iv)(b) of Sub-section (2). But that is only an alternative argument. His main argument is that it is really not covered by any of the paragraphs of Sub-section (2). Mr. Bhulabhai Desai has urged, on the other hand, that the, different kinds of information or report are enumerated in paragraphs (iv), (v), (vi), (xxv) and (xxvii) of Sub-section (2) and that therefore rules can be made only with regard to them and not with regard to any other kind of information. According to him, therefore, Rule 39 must conform to the conditions and limitations mentioned in these paragraphs and cannot go beyond them ; otherwise it would destroy the purpose of that sub-section. He further contends that in none of those paragraphs has the legislature granted rule-making powers for possession of a document containing a prejudicial report and that, therefore, it is necessarily implied that no rules can be made about the possession of such document even though they may relate to any of the objects mentioned in Sub-section (1). In my opinion, however, it cannot be said that rules relating to information or report must be made with regard to those matters only which are specifically provided for in Sub-section (2). Rule 39 (1)(b) deals with possession of documents containing prejudicial reports. It does not deal with information but with documents in the nature of prejudicial reports. Nor is such a document of the nature of report mentioned in para. (v) where 'report' means rumour or news which might be spread among the public. The matter dealt with under para. (iv) of Section 2 is not merely possession of any information but such information as is likely to assist the enemy. Rule 39(1)(a) is thus framed for punishing that particular type of information and it is admittedly valid. But no condition has been prescribed in any of the paragraphs of Sub-section (2) as regards making of rules for possession of documents containing prejudicial reports. That, in my opinion, does not mean that the Legislature prohibited the enactment of any rules for that purpose. It means that no limitations have been imposed for making rules relating to such reports under Sub-section (2) and that therefore the Central Government has the power to frame rules without any particular limitations, as the subject-matter of such reports does fall within the main heads of Sub-section (1). There is no doubt that in this case the two documents F and G fall within the objects stated in Sub-section (1) and they also satisfy several of the ingredients of 'prejudicial act' in Rule 34(6) and as such fall within the definition of a 'prejudicial report' in Rule 34(7) of the Defence of India Rules. Rule 39(1)(b) is framed under the rule-making power given under Section 2, Sub-section (1), just as Rule 39(1)(a) is made under the specific rule-making power given under para. (iv)(b) of Sub-section (2) of Section 2. Both are equally valid and intra vires.

6. In my opinion, therefore, the accused is guilty of the offence with which he is charged, and we accordingly convict him of the offence under Rule 39(6) read with Rule 39(1)(b) of the Defence of India Rules and sentence him to rigorous imprisonment for three months.

Lokur, J.

7. I concur, and in view of the importance of the question raised, I should like to add a few words.

8. This is an appeal by the Government of the Province of Bombay against the acquittal of the accused by the Presidency Magistrate, Third Additional Court, Girgaon, Bombay. When the room rented and occupied by the accused was searched by the police on January 27, 1943, several articles were attached, including a paper bag containing, among other things, two bulletins, exhibit F, six leaflets exhibits G and a typed sheet exhibit H. These documents exhibits F, G and H were regarded as prejudicial reports as defined in Rule 34(7) of the Defence of India Rules, and for being in possession of them in contravention of Rule 39 (1)(b) of the said rules the accused was prosecuted under Rule 39 (6). The learned Magistrate held that exhibits F and G were prejudicial reports and that the accused was in possession of them and thereby did contravene the provisions of Rule 39(1)(6). But he acquitted him on the ground that according to the principle laid down by the Federal Court in Emperor v. Keshav Talpade (1943) 46 Bom. L.R. 22., Rule 39(1)(b), itself was ultra vires and invalid, since it went beyond the rule-making powers conferred upon the Central Government by Section 2 of the Defence of India Act, 1939.

9. It is not disputed here that exhibits F and G are prejudicial reports and that they were in the possession of the accused. The learned Advocate General say9 that this is enough for his purpose, and though he does not concede that exhibit H is not a prejudicial report, he says that that document may be left out of consideration in this appeal. Hence the only point which we are called upon to consider is whether Rule 39(1)(b) of the Defence of India Rules is within the rule-making powers conferred upon the Central Government by the Defence of India Act, 1939. If it is not within those powers, then it must be held void and inoperative and a contravention of it would not be punishable as an offence under Rule 39(b).

10. Sub-section (1) of Section 2 of the Defence of India Act, 1939, confers upon the Central Government general powers to make such rules as appear to it to be necessary or expedient for securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community. Without prejudice to the generality of these powers, Sub-section (2) sets out in thirty-five paragraphs certain subject-matters which may be provided for by the rules made under Sub-section (1). In Keshav Talpade's case the question was whether Rule 26 of the Defence of India Rules, which provides for the apprehension and detention of certain persons, was within the rule-making powers conferred by Section 2 of the Act. The subject-matter 'apprehension and detention' is dealt with in para. (x) of Sub-section (2) and Rule 26 goes beyond the scope of that paragraph. It was, therefore, urged that Rule 26 must be deemed to have been made under the general powers conferred by Sub-section (1). But the learned Chief Justice observed (p. 47) :

The Legislature having set out in plain and unambiguous language in paragraph (x) the scope of the rules which may be made providing for apprehension and detention in custody it is not permissible to pray in aid the more general words in Section 2(2) in order to justify a rule which so plainly goes beyond the limits of paragraph (x) ; though if paragraph (x) were not in the Act at all, perhaps different consideration might apply.

11. This clearly sets out the scope of the two sub-sections and it has been still more clearly explained by Zafrulla Khan J. in King Emperor v. Sibnath Banerjee [1944] F.C.R. 1 as follows (p. 27) :

It would not be correct to say that Section 2, of the Defence of India Act confers two kinds of rule-making powers, one under the first sub-section and the other under the second sub-section. The rule-making power is conferred under the first sub-section and all that the second sub-section does is to set out the conditions under which rules in respect of the particular subject-matters enumerated in its paragraphs may be made in the exercise of powers conferred under the first sub-section. Any other view would lead to the anomaly that on the subjects enumerated in the paragraphs of Sub-section (2) there might be two sets of rules, one conferring unconditional and unlimited powers by virtue of being framed under Sub-section (2) and the other being subject to restrictions and limitations in conformity with conditions and restrictions prescribed by Sub-section (2), a state of affairs, the contemplation of which could not possibly be attributed to the Legislature.

12. Applying this principle to the present case, what we have to' decide is whether the subject-matter of Section 39(1)(b) is dealt with by any of the thirty-five paragraphs in Sub-section (2) of Section 2 and in that case the rule must comply with the conditions, if any, laid down in that paragraph. The learned Magistrate seems to think that 'possession' by itself is a subject-matter and that it is dealt with in paras. (iv)(b) and (xxv) of Sub-section (2) and he holds Rule 39(1)(b) to be ultra vires as it does not fall within the scope of either of those two paragraphs. Mr. Bhulabhai Desai, the learned Counsel for the accused, candidly admits that possession by itself is not a 'subject-matter', but the thing possessed would be a subject-matter, so that when a certain category of things is prohibited from being possessed, the rule must conform to the conditions and limitations of that category in Sub-section (2). I take this to be a correct exposition of the law as laid down by the Federal Court in the two cases cited above. Paragraph (xxv) is, therefore, irrelevant, since it deals with the possession, use or disposal of certain specified articles without laying down any conditions or limitations.

13. Mr. Bhulabhai Desai takes his stand wholly on paragraph (iv)(b) of Sub-section (2) which provides for the making of rules preventing ''acquisition, possession without lawful authority or excuse and publication of information likely to assist the enemy '.

14. He contends that this paragraph deals with the subject-matter of the acquisition, possession and publication of 'information', but lays down a condition that this can be prohibited by a rule only if that information be 'likely to assist the enemy'. Thus according to him the subject-matter is 'information' and the limitation is that it should be such as is likely to assist the enemy. At first sight this reasoning appears to be very plausible. Rule 39(1)(a) prohibits the possession without lawful authority or excuse of any information likely to assist the enemy and thus covers the entire subject-matter of information within the limits laid down by para (iv)(b) of Sub-section (2).

15. 'Prejudicial report' is defined in Rule 34(7) as any report, statement or visible representation, whether true or false, which, or the publishing of which, is, or is an incitement to the commission of, a prejudicial act as defined in this rule. 'Prejudicial act' is defined in Rule 34(6) as any act which is intended or is likely to produce any of the eighteen effects enumerated in that rule. According to the definition given in Rule 34(5) 'information likely to assist the enemy' includes any document or other record containing or purporting to contain certain kinds of information specified in it. Prejudicial reports include documents containing certain other kinds of information. Hence it may be said that at least some classes of prejudicial reports come within the scope of the subject-matter of 'information' and Rule 39(1)(b) prohibits their possession even though they may not be likely to assist the enemy. In that case the entire rule would be ultra vires and invalid.

16. All this reasoning would, however, fall to the ground if we read the whole of paragraph (iv) of Section 2. Different subject-matters are dealt with in different paragraphs of that sub-section and para. (iv) deals with the prevention of 'anything likely to assist the enemy or prejudice the successful conduct of war', and four items are specified as being included in it. Those four items are mere instances of what may be comprised in the subject-matter dealt with by that paragraph, viz. things likely to assist the enemy or prejudice the successful conduct of war. The four items mentioned in that paragraph, viz, communications, information, the floating of loans and advance of money to, or contracts or commercial dealings with, the enemy, do not, therefore, deal with independent subject-matters but are confined to such as are likely to assist the enemy or prejudice the successful conduct of war. Hence these four items are not to be treated as different subject-matters in themselves, but as illustrations of the subject-matter dealt with in para. (iv), viz. things likely to assist the enemy or prejudice the successful conduct of war. That subject-matter does not touch prejudicial reports as defined in Rule 34(7) of the Defence of India Rules.

17. There is no other paragraph in Sub-section (2) of Section 2 of the Defence of India Act dealing with the subject-matter under Which a prejudicial report can be brought. It follows that the subject-matter of Rule 39(1)(b) not being dealt with by Sub-section (2), it must be held to have been made in exercise of the general rule-making powers conferred by Sub-section (1), and it cannot be disputed that Rule 39(1)(b) does not go beyond the scope of Sub-section (1). It must, therefore, be held to be valid and not ultra vires. I, therefore, agree that the appeal should be allowed and concur in the order proposed by my learned brother.


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