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R.L. Reddy S/O Narsayya Vs. Provincial Government - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Judge
Reported in1949CriLJ363
AppellantR.L. Reddy S/O Narsayya
RespondentProvincial Government
Excerpt:
- - (6) in view of your antecedents and from information in possession of government they are satisfied that you are likely to act in a manner prejudicial to the public safety, order and tranquillity. mehta left balaghat on 29th may 1948 reached nagpur on that night and bad with the detenu next day a secret meeting at which instructions were issued to the local communist party members to agitate for a city allowance and the reopening of grain shops for railway employees. 9. the learned advocate-general's contention is clearly untenable. this argument is clearly untenable. 12. the general principle is that alteration in procedure is retrospective unless there be some good reason against it, but we are unable to accept the contention of the learned advocate......to have a retrospective operation.13. this principle 6nds place inter alia in section 5, c. p. and berar general clauses act, 1914 (i [l] of 1914) which deals with the effect of repeal and lays it down that where-a provisional act repeals an enactment, the repeal shall not affect, (i) any right, privilege, obligation or liability acquired, accrued or incurred under the enactment repealed, or (ii) any penalty, forfeiturn or punishment incurred in respect of any offence committed against that enactment, or (iii) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid. this is subject to the words 'unless a different intention appears' but, as we have already pointed out, no such intention.....
Judgment:
ORDER

1. This is an application for his release under 8. 491, Criminal P. C, by R. L. Reddy, storeman, Bengal Nagpur Railway, Nagpur, whose detention was ordered for a period of six months on 31st July 1948 by the Provincial Government, Central Provinces and Berar, under; Section 2(1)(a), C. P, and Berar Public Safety Act, 1947. On the same date, he was, in accordance with Section 5, ibid, issued the following grounds of detention and particulars:

(1) You are the General Secretary of the Nagpur B, N. R, Workers Union and a prominent member of the Communist Party of India which has decided to arm the masses and to start a peoples' army with the object of overthrowing Government established by law.

(2) You were actively trying to foment and incite strikes with intent to cause unreal among the railway employees at Nagpur.

(3) You attended a secret meeting convened by Shri C. P. Mehta on 29th May 1948 at which instructions were issued to the local Communist Party members to carry on agitation for demanding the city allowance and re-opening of cheap grain shop for railway employees.

(4) On 18th June 1948 you exhorted the workers of the B. N. R, Workshop to observe the Union Day on 27th June 1948.

(5) You generally look after the work of Communist Party's Office at Nagpur.

(6) In view of your antecedents and from information in possession of Government they are satisfied that you are likely to act in a manner prejudicial to the public safety, order and tranquillity.

2. The applicant in his application denied that he was a prominent member of the Communist party or that it had decided to arm the masses and to start a peoples' army with the object of overthrowing the Government established by law, but he admitted that he had been elected Secretary of the B N. R. Labour Union (Motibagh Branch) which was a registered trade union. He denied that be actively tried to foment or incite' strikes with intent to cause unrest among railway employees in Nagpur and pointed out that he had no connexion with the employees of railways other than the Bengal Nagpur Railway.

3. He denied that he had attended a secret meeting convened by Shri C. P. Muhta on 29th May 1948, that any such meeting had taken place or that instructions had then been issued to the local Communist party to agitate for a city allowance and the re-opening of cheap grain shops for railway employees. He added that on that date, the Bengal Nagpur Railway had several cheap grain shops and that Shri C. P. Mehta was in Balaghat.

4. He denied that he had exhorted the B. N. B. workshop workers on 18th June 1948 to observe Union Day on 27th June 1918 and added that the meeting held on 28th June 1948 was held with the permission of the District Magistrate. He denied that he looked after the work of the Communist party's office in Nagpur and claimed that he had nothing to do with it or with the party. Finally, he declared that there was nothing wrong in his antecedents and no cause for complaint against him had been found either by the railway authorities or Government.

5. The Provincial Government in its return denied that the Nagpur B. N. R. Labour Union was registered under the Indian Trade Unions Act in the Central Provinces and Berar and declared that the detenu was a prominent member of the Communist party and very active in exploiting labour for his own ends by trying to foment and incite strikes. It was also stated that Shri C. P. Mehta left Balaghat on 29th May 1948 reached Nagpur on that night and bad with the detenu next day a secret meeting at which instructions were issued to the local Communist party members to agitate for a city allowance and the reopening of grain shops for railway employees. The detenu had exhorted the workers of the B. N. E. workshop on 18th June 1948 to observe Union Day on 27th June 1948 and he looked after the work of the Communist party office at Nagpur.

6. An affidavit was thereafter filed by Damodar son of Govindrao Shangerpwar of the Bengal Nagpur Railway (Indian) Labour Union to the 'effect that he is the vice-president of the Motibagh Branch of the Bengal Nagpur Railway (Indian) Labour Union which is a registered trade union with its head office at Kharagpur and that the detenu was the secretary of the Motibagh branch until he wa9 arrested. The learned Advocate-General was not in a position to represent whether or not the union was a registered body, but the point was not of importance for the reason that it was not suggested that the body was an unlawful 'One. The Communist party too has not been declared illegal and, as wa3 pointed out by a Division Bench of this Court in Woman Ambadas Kadam v. Provincial Government, C. P. and Berar, Misc. Cri. case No. 287 of 1948, decided on 22nd July 1948 membership of that body without anything else does not prima facie attract the provisions of the Central Provinces and Berar Public Safety Act.

7. The learned Advocate-General relied on that part of the grounds of detention and particulars which runs as follows:

You were actively trying to foment and incite strikes with intent to cause unrest among the railway employees at Naypur.

This, he urged, did not, and could not, signify that the consequence of the fomenting and inciting was that a strike had actually taken place. The defect, however, in this item of the grounds of detention and particulars was that it did not specifically mention the manner in which, the places at which, the dates on which and the times at which the detenu had actively tried to foment and incite strikes and it was, therefore, undoubtedly vague; but the Advocate General relied on Section 35 (2) and the proviso to 8 4, Central Provinces and Berar Public Safety Act, 1948 (LXII 62] of 1918) which received the assent of the Governor-General on nth October 1948 and was published in the Central Provinces and Berar Gazette Extraordinary on 16th October 1948. This Act was, therefore, not in force when the order detaining the applicant was passed under the Central Provinces and Berar Public Safety Act, 1947, which has been repealed by the Act of 1948.

8. Section 35 (2) of the Act of 1048 runs as follows:

Any order made under any-provision of the Central Provinces and Berar Public Safety Act. 1947, if in force immediately before the commencement of this Act, shall, if not inconsistent therewith, continue in force and be deemed to be an order made under this Act and' any notification issued, appointment made or action taken under the Central Provinces and Berar Public Safety (Amendment) Ordinance, 1948, shall, to the extent to which it is not inconsistent with this Act be deemed to have been issued, made or taken under this Act.

It was urged that the effect of this sub-section is that as the order of detention can be deemed to have been made under this Act, the proviso to Section 4 comes into play and under that proviso neither the order passed under Section 2(l)(a), Public Safety Act, nor the detention of the person concerned thereunder can be deemed to be invalid or unlawful or improper on the ground of any defect, vagueness, or insufficiency of the communication made to the detenu under that section which otherwise reproduces the provisions of Section 5 of the Act of 1947 with some alterations.

9. The learned Advocate-General's contention is clearly untenable. Section 35 (2) of the Act of 1948 merely continues the order of detention made under the Act of 1947, but it does not give retrospective effect to Section 4 of the Act (of) 194& nor is there anything in that section which indicates that it is to have retrospective effect. In fact, the proviso to that section refers specifically to the communication made to a detenu under the section itself and there is no reference what, ever to Section 6 of the Act of 1947.

10. In Basant Singh v. Rampal Singh, 51 I. C. 988 : (A.I.R. (6) 1919 Oudh 217) a Division Bench made the following observations at pp. 989 and 990

Reliance is placed on the appellant's behalf on Section 2, Court of Wards Act, 1899, which says that all orders issued under repealed enactments Shall be far as may be, be deemed to have been issued under the new Act, and on the strength of this it is argued that even if redemption took place under Act XVII [17] of 1876 Section 47 of Act III [3] of 1899 should be held to be applicable. this argument is clearly untenable. Section 2 is merely the usual provision, now incorporated in a modified form in Section 24, U. P. General Clauses Act, 1904, designed to safeguard the validity of orders, appointments, etc., issued under a repealed enactment. It was certainly never intended to, give retrospective effect to Act III [3] of 1899.

11. We are aware that whenever an intention is clear that an Act should have a retrospective operation, it must be so construed, even though the consequence may appear unjust and hard; but such intention is by no means clear in the Act of 1948 and we are in respectful agreement with the following observations of Wright in Athulumney, In re, (1898) 2 Q. B. 551 : 67 L. J. Q. B 935

No rule of construction is more firmly established than this: that a retrospective operation is not to be .given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only.

12. The general principle is that alteration in procedure is retrospective unless there be some good reason against it, but we are unable to accept the contention of the learned Advocate. General that the relevant part of the Act. of 1948 amounted merely to an alteration in procedure. In National Real Estate and Finance Go. v. Hassan, (1939) 2 k. b. 61 : 108 L.J.K.B. 380 it was held that where vested rights are affected prima facie, it is not a question of procedure; and as Maxwell points out at p. 223 of Edn. 9 of the Interpretation of Statutes, every statute which takes away or impairs vested rights acquited under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past, must be presumed, out of respect to the Legislature, to be in. tended not to have a retrospective operation.

13. This principle 6nds place inter alia in Section 5, C. P. and Berar General Clauses Act, 1914 (i [l] of 1914) which deals with the effect of repeal and lays it down that where-a Provisional Act repeals an enactment, the repeal shall not affect, (i) any right, privilege, obligation or liability acquired, accrued or incurred under the enactment repealed, or (ii) any penalty, forfeiturn or punishment incurred in respect of any offence committed against that enactment, or (iii) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid. This is subject to the words 'unless a different intention appears' but, as we have already pointed out, no such intention is apparent in the Act of 1948.-

14. We accordingly hold that the proviso to 8. 4 of this Act. cannot be invoked as contended by the learned Advocate.General; and as we consider that the item relied upon by him in the grounds of detention and particulars was defective by reason of vagueness, the application must succeed. It is not, however, necessary now to order the release of the detenu, as we directed it on 29th October 1948 when we reserved the case for orders.


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