1. The Judicial 2nd Class Magistrate Parvatipuram convicted the accused K. Lakahmi Narayan and Alladi Lakshmana Rao of an offence under Sections 35 and 36 of the Madras Forest Act read with Rule 2 of the Timber Transit Rules and sentenced them to fine of Rs. 100 each and in default to suffer one week's simple imprisonment. The learned Magistrate besides, directed confiscation of the lorry along with the other material objects as contemplated by Section 13 of the Madras Forest Act. There was no appeal against this order of conviction with the result that the order of conviction against the said accused became final. As the lorry was directed to be confiscated, the lorry owner, N. Suryanarayana preferred this appeal (Criminal Appeal 59 of 1965) before the Additional Sessions Judge, Srikakulam. Two questions mainly arose for consideration in this appeal. The first was whether the word 'shall' used in Section 43 of the Andhra Pradesh (Andhra Area) Forest Act 1882 as amended by Act II of 1963 is mandatory in its implication and effect and the second was if so, whether that section in its amended form is ultra vires the powers of the State Legislature as violative of Articles 13, 14 and 31 of the Constitution of India.
2. The learned Additional Sessions Judge without coming to any definite conclusion on the above points, has referred both the questions for decision of this Court. The said questions read thus:
(1) Whether the word 'shall' occurring in Section 43 of the Andhra Pradesh (Andhra Area) Forest Act 1882, as amended by Act II of 1963 is mandatory?
(2) If so, whether Section 43 of the Act as amended is ultra vires of Articles 13, 14 and 31 of the Constitution of India?
3. As this reference purports to havebeen made under Section 432 Cr. P. C., wemay notice here the said provision which,so far as is relevant for our purpose readsthus:
'432. (1) Where any Court is satisfiedthat a case pending before it Involves a question as to the validity of any Act, Ordinanceor Regulation or of any provision containedin an Act Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that suchAct Ordinance Regulation or provision isinvalid or inoperative, out has not been sodeclared by the High Court to which thatCourt is subordinate or by the SupremeCourt the Court shall state a case settingout its opinion and the reasons therefor, andrefer the same for the decision of the HighCourt.
It would appear from the language of the section that such a reference is competent only when the requisite conditions stated in the said provision are fulfilled The Court, before making such reference, must be satisfied firstly that the case pending before it involves a question as to the validity of any Act, or Ordinance or any provision contained therein and the determination thereof to necessary for the disposal of the case. In other words, wherever a question of the validity of an Act is raised, the reference under Section 432 Cr. P. C. does not become, ipso facto, inevitable. An additional condition must also be satisfied. The determination of the question of validity must be necessary for the disposal of the case. The Court should come to that conclusion before it could proceed. The matter does not end even at that for, there is a further condition imposed by Section 432 Cr. P. C., namely, that the Court must also be of opinion that such Act, Ordinance or Regulation or provision is invalid or inoperative but has not been so declared by this Court or the Supreme Court. Without giving thought to this last aspect and without forming an opinion as to the invalidity or inoperative character of the provision, the Court cannot proceed to state a case and make reference under Section 432 Cr. P. C. The provision is express and explict and says that the Court should state the case setting out its opinion and reasons in that behalf.
4. The learned Additional Sessions Judge failed to bear in mind these essential requisites before he decided to make the present reference. He failed also to note that the first point was concerned with mere interpretation of the provision which could not form the subject-matter of reference under Section 432 Cr. P. C. He had to decide the point himself and the reference thereon to this Court was against law. The second question of course could be referred for decision but only after compliance with the requisite conditions of Section 432 Cr. P. C. I therefore reject this reference with the direction that the learned Sessions Judge would do well to first satisfy himself of the essential pre-requisites warranted by the provision and proceed in accordance with law.