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Ghanairam Pachhuram Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1954CriLJ1367
AppellantGhanairam Pachhuram
RespondentThe State
Excerpt:
.....must also fall with the part which is invalid. and where the invalid and the valid parts are independent and essentially and inseparably connected in substance, there is a strong presumption that the legislature would not have, enacted one part without the other, and the entire statute will fall. ' which were inserted by the legislature in section 197 of the criminal procedure code are words of limitation and are inseparable from the words 'public servant' and to excise them would have the result of widening its scope and would quite clearly bring into existence a law which was never within the contemplation of the legislature. on the other hand, it does so for a good reason......on the other hand, we are of opinion that it makes a reasonable classification amongst public servants. thus, public servants who are not removable from their respective offices save by or with the sanction of the central government are concerned they are put in one class and the public servants who are removable from their respective offices even without the sanction of the central government are concerned are put in another class. the reason for this classification quite obviously is that the public servants who hold responsible positions and who discharge important functions shall alone be afforded certain amount of protection from the harassment resulting from vexatious prosecutions, while those who discharge comparatively unimportant functions or hold less responsible.....
Judgment:
ORDER

1. This is an application for the grant of a certificate under Article 134(1)(c) of the Constitution.

2. The applicant who was a shunting driver on the Central Railway was prosecuted for an offence under Section 101 of the Railways Act on the allegation that he had negligently driven his shunting engine in excess of the prescribed speed limit and caused collision with two other engines, resulting in damaging the railway property. He was convicted of the offence and sentenced to pay a fine of Rs. 60/-. His appeal against his conviction was dismissed by the Additional Sessions Judge, Damoh. Thereupon he preferred an application for revision before this Court which was dismissed by Hemeon J.

3. The applicant wants a certificate from us under Article 134(1)(c) of the Constitution so that he can prefer an appeal before the Supreme Court. The grounds on. which the certificate is sought. are two. In the first place, it is said that the sanction of the Central Government under Section 197, Criminal P. C., for prosecuting the applicant was necessary and that in the absence of such sanction, his conviction and sentence are both void. Secondly, it is said that the applicant could not be held to have exceeded the speed limit inasmuch as the Working Order for the station fixing the speed limit had not been proved in this case,

4. Section 197(1) of the Criminal P. C. reads thus:

(1) When any person who is a Judge within the meaning of Section 19 of the Penal Code, or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of a (State Government) or (the Central Government) is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-

(a) in the case of a person employed in connection with the affairs of the Union, of the Central Government and

(b) in the case of a person employed in connection with the affairs of a State, of the State Government.

5. No doubt, the applicant was an employee of the Central Government; but Section 197 does not say that no employee of the Central Government can be prosecuted unless previous sanction is given by the Central Government. It is clear from Section 197 that the sanction of the Central Government for the prosecution of its employee for an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty is necessary only when such employee is not removable from his office save by or with the sanction of the Central Government. It is not disputed before us that there are four classes of railway servants and that the applicant falls in the fourth class. Reference to Schedule I to the Railway Code shows that the employees falling in this class are removable by the head of the office. In the circumstances, therefore, the protection afforded by Section 197 of the Criminal P. C. cannot be availed of by the applicant.

6. It is, however, said that to the extent that 6 197 fails to afford protection to a certain class of railway servants, it is discriminatory and that by virtue of Article 14 of the Constitution the applicant is entitled to the same protection as other classes of Government servants referred to in Section 197 of the Criminal P. C. If Section 197 makes discrimination unreasonably or arbitrarily between one class of Government servants and another, then the only effect thereof would be that it will be rendered void. If it is rendered void, then there will be no need for any sanction at all, whether the person concerned falls in the category specified in 8. 197 or outside that category. Thus, in that case, the applicant would have no ground whatsoever for complaint.

7. It is, however, said that the whole of Section 197 would not be rendered void because of the arbitrary discrimination made therein but only that part of the section which creates a discrimination. Thus, according to the learned Counsel, the words 'who is not removable from his office save by or with the sanction of a State or the Central Government' ought to be excised from Section 197(1) of the Criminal Procedure Code as being inconsistent with Article 14 of the Constitution. This, according to him, is permitted by Article 13(1) which runs thus : 'All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.'

8. It is, no doubt, a well-known principle of construction that when a law happens to be unconstitutional in part, the whole of the law does not necessarily fail. But when the valid part of a law is so clearly dependent and so inseparably connected with the invalid part that they cannot be separated without defeating the object of the statute, that part must also fall with the part which is invalid.

As stated by the Crawford at page 216 in his Statutory Construction:

In determining separability, the test is whether the Legislature has manifested an intention to deal with a part of the subject-matter covered, irrespective of the rest of the subject-matter, if such an intention is manifest, the subject-matter is separable. If the valid parts are complete in themselves and independent of the invalid parts and capable of being executed according to the intention of the Legislature, they must be sustained by the Court, notwithstanding partial invalidity. The invalid parts, however, may be dropped only where the part which is retained is fully operative as a law. And where the invalid and the valid parts are independent and essentially and inseparably connected in substance, there is a strong presumption that the Legislature would not have, enacted one part without the other, and the entire statute will fall.

A similar result will occur where all the provisions of an Act are connected as parts of a single scheme. In such a case, if the main object or purpose is invalid, those provisions which are incidental will also fall. But in any instance, there is a presumption that the Legislature intended for the statute or Act to be effective in its entirety, unless something in the Act indicates to the contrary.

9. The words 'who is not removable etc.' which were inserted by the Legislature in Section 197 of the Criminal Procedure Code are words of limitation and are inseparable from the words 'public servant' and to excise them would have the result of widening its scope and would quite clearly bring into existence a law which was never within the contemplation of the Legislature. The power to make laws vests in the Legislature alone and it is not within the province of the Court to so use its power to construe a law as to alter the law made by the Legislature to a substantial extent. Thus, where the excision of a provision of an existing law would have the result of leaving on the statute boo!? a law never intended by the (Legislature to be enacted, then the whole of that law will be deemed to have been rendered void.

The law in question here is Section 197 of the Criminal P. C, and if we accept the contention of the learned Counsel that the words 'who is not removable from his office save by or with the sanction of a State Government or the Central Government' being inconsistent with Article 14 can be exercised under Article 13(1) what would be left out of the law would be something which was never intended by the Legislature to enact. It being beyond the power of the Court to bring into existence a law which is not of the making of the Legislature the result that would ensue would be to render the whole of Section 197 of the Criminal P. C. void. If it is rendered void wholly then the applicant does not stand to gain at all because there will then be no necessity for sanction for; the prosecution of any class of Government servants whatsoever.

10. However, we are clear that Section 197(1) does not create any arbitrary discrimination; on the other hand, we are of opinion that it makes a reasonable classification amongst public servants. Thus, public servants who are not removable from their respective offices save by or with the sanction of the Central Government are concerned they are put in one class and the public servants who are removable from their respective offices even without the sanction of the Central Government are concerned are put in another class. The reason for this classification quite obviously is that the public servants who hold responsible positions and who discharge important functions shall alone be afforded certain amount of protection from the harassment resulting from vexatious prosecutions, While those who discharge comparatively unimportant functions or hold less responsible positions would not be accorded such protection.

For, it is not essential in the public interest that protection of this kind should be given to each and every public servant, but should be given to them alone who discharge important duties because the prosecution of such persons may interfere with the performance by them of their duties and ultimately the public interest may suffer. The law is thus not discriminatory in the sense that it arbitrarily prefers certain categories of Government servants to others. On the other hand, it does so for a good reason. As was pointed out by their Lordships of the Supreme Court in Ramprasad v. State of Bihar' : [1953]4SCR1129 what the quality clause aims at is to strike down hostile discrimination or oppression of inequality and that since the guarantee applies to all persons similarly situated, it is open to the Legislature to classify persons and things to achieve particular legislative objects, but that such selection or differentiation must not be arbitrary and should rest upon a rational basis, having regard to the object which the Legislature has in view.

11. We are clear that the object of Section 197 of the Criminal P. C. is to afford protection to public servants from harassment resulting from vexatious prosecutions to the extent it is necessary in the public interest and that object can be achieved by putting in one class those public servants who discharge responsible duties and perform important functions and by putting in another class those whose duties and functions are less important. Such a classification can in no sense be regarded as arbitrary or unreasonable.

12. As regards the second point, it is sufficient to say that though the Station Working Order has not been placed on record, there is evidence of numerous witnesses to the effect that the speed limit fixed for a particular station was four miles per hour. Whether to accept that evidence or not was entirely for the Court of fact to decide. That Court haying accepted the evidence which, it may be mentioned, was received without objection from the applicant, the finding as to the speed limit can no longer be questioned.

13. Accordingly, we hold that no case has been made out for the grant of a certificate under Article 134(1)(c) of the Constitution and dismiss this application.


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