1. In these four miscellaneous applications a common question of law of general importance has arisen and it has, therefore, keen referred to a Bench for decision.
2. In the first Miscellaneous Application Order 437 of 1947, Jagdam Sahai who was a Chief Sorter in the Oudh and Tirhut Railway, was convicted under Rule 81(4), Defence of India Eules, for having contravened the provisions of Clause 3, United Provinces Food-grains (Movement) Control Order, 1943. Jagdam Sahai was in charge of the mail van between Gorakhpur and Palheza Ghat. On 21-10-1943, it was found by the Railway Sub-Inspector of Police, Bhagwan Singh Kapoor, when the train reached Palheza Ghat, that several of the mail bags contained foodgrains which could not be exported Outside the Province without fulfilling the requirements of the Control Order referred to above. Besides Jagdam Sahai, there were three other sorters in the van, Jamuna Singh, K. Kumar and Munshi Ram. All the four were tried and convicted by a Magistrate. The learned Sessions Judge dismissed their appeals and there were revisions filed in this Court. The revisions were also rejected and now applications have been filed for certificates that the cases involve substantial questions of law as to the interpretation of the provisions of the Government of India Act, 1935.
3. The application by Jagdam Sahai has been numbered and registered as Miscellaneous case Order 437 of 1947, and Dr. Surendra Nath Sen has appeared for him, while the application on behalf of the other three, Jamuna Singh, K. Kumar and Munshi Ram has not yet been numbered as no notice was issued of that application to the Government Advocate. Mr. Rup Kishore Srivastava has appeared for them. These two applications, therefore, arise out of the same case.
4. The point on which leave has been asked for is whether on a correct interpretation of Section 270, Government of India Act, 1935, sanction of the proper authority was necessary under that section for the prosecution of the accused, inasmuch as it was their duty, they being in charge of the mail bags, to see that the mail bags reached their destination. The second point is that the United Provinces Foodgrains (Movement) Control Order, 1943, came into force on 21-4-1943, and it was published in the Goverment Gazette on the same date and the applicants had no knowledge of its provisions. The third ground is that there was nothing to show that the bags had not been tampered with and filled with grain before the accused took, over charge at Gorakhpur.
5. Obviously, the second and third points do not relate to the interpretation of the Government of India Act, or of any Order in Council made thereunder. The first point was not raised at any earlier stage of these proceeding's. It is difficult to accept on the facts of this case that the accused did not know that the mail-bags contained grain and that they were carrying the grain in execution of their duty. It is, however, not necessary for us to give any decision on this point as it was never raised before this Court or the subordinate Courts.
6. The next application is Miscellaneous Order 438 of 1947 and is by one Debi Ghulam, who was. the proprietor of a cloth shop known as D. Gupta and Co. Cawnpore. The charge against him was that he was in possession of cloth in contravention of Clause 14, Central Cotton Cloth and Yarn (Control) Order, 1943, after 31-3-1945, and after 31-12-1945 respectively, cloth which he should have sold before those dates. He was convicted by the Magistrate and his conviction was affirmed by the learned Sessions Judge, and a revision to this Court was also dismissed.
7. Learned Counsel has taken his stand on only one ground; that the Magistrate was not justified in passing an order of forfeiture, forfeiting the cloth that was found in possession of the applicant in contravention of the above order. He relies on Section 299, Government of India Act, 1935, which lays down that no person shall be deprived of, his property in British India save by authority of law. Learned Counsel had to admit that there is a provision in Rule 81(4), Defence of India Rules, made under the Defence of India, Act, for forfeiture by way of penalty. This case was fought out entirely on the merits and in this case also no point was raised about the interpretation of any provision of the Government of India Act or of any Order in Council passed thereunder.
8. The fourth case is an application of one Moonga Ram. He was an Assistant Station Master. He and the Station Master, Chintaman Pande, were both tried and convicted under Rule 81(4), Defence of India Rules, for contravention of the United Provinces Foodgrains and Oilseeds (Movement) Control Order, 1943, inasmuch as they allowed mustard oil to be exported outside the United Provinces. Both Moonga Ram and Chintaman had filed appeals before the learned Sessions Judge. The learned Judge made a reference to this Court for enhancement of the sentence of Chintamani and dismissed the appeal of Moonga Ram. Moonga Ram came up in revision to this Court and the revision and the reference were heard together by a Bench of this Court who dismissed the same.
9. The only point urged on behalf of-Moonga Bam was that he did not know of the order prohibiting export of mustard oil. It was also said on his behalf that he had acted under the orders of the Station Master and in good faith. These contentions were not upheld. It is, however, urged before us that the United Provinces Foodgrains and Oilseeds (Movement) Control Order, 1948, is ultra vires the United Provinces Government. This point does not appear to have been urged before the Bench hearing the revision, though we find from the grounds of revision that a ground to that effect was added by learned Counsel The case having been decided by Sankar Saran and Akbar Husain, JJ., it appears desirable that the question of leave, if it is necessary to decide the same on the merits, may be decided by them. We shall, therefore, express no further opinion on the merits.
10. The point of general importance on which the cases were referred to this Bench is whether Section 205, Government of India Act, 1995,contemplates that an application for a certificate of the nature mentioned therein can be filed some time later after the date of the decision by the High Court. The learned Chief Justice in his referring Order haft mentioned the decision of the Oudh Chief Court in Abdul Qasim v. Emperor 30 A.I.R. 1943 Oudh. 453 in support of the view that such an application does not lie. We have carefully considered the language of Section 205, Government of India Act, and there can be no doubt t that the Legislature intended that at the time of delivering the judgment the High Court should consider whether a case involves a substantial question of law as to the interpretation of the Government of India Act, or any Order in Council made thereunder and certify accordingly, that is, if the High Court is not satisfied that any-such question is involved it should withhold the certificate, otherwise it should grant it.
11. In Errol Mackay v. Oswal Forbes , where the High Court at Calcutta had allowed in part an appeal from its-original side but had not said anything about the-withholding of certificate under Section 205, Government of India Act, it was urged that it must be taken that the High Court had considered the matter and must be deemed to have withheld the certificate. Their Lordships held that the High Court had overlooked the provisions of Section 205 altogether and do not seem to have decided to withhold the certificate. What is significant, however, is that while dismissing the appeal their Lordships reserved the right for the appellant to apply for restoration if the High Court should thereafter make an order withholding a certificate under Section 205. This clearly envisage the possibility of a High Court not considering; the question of certificate under Section 205 at the time of the decision of the case and rectifying; the error by a subsequent order.
12. In the second case reported in the sama volume, Punjab Co-operative Bank Ltd. Amritsar v. Commr. Of Income-tax, Lahore , the point was fully discussed before their Lordships of the Judicial Committee and their Lordships pointed out that though the language of the section was very comprehensive and the duty was to be that of 'every High Court in British India in every case' to consider whether Or not the specified question was involved, but as the provisions, must be deemed to be only directory and not-mandatory the duty of giving or withholding a. certificate was cast only in cases
where there is a reasonable possibility that the specified question arises or may arise, or, alternatively, the duty is one which need only be complied with in such a. case.
Their Lordships go on to point out that in a vast majority of cases no such question can arise and that
It seems to their Lordships most difficult to believe-that the Legislature was intending to lay on the Judges of every High Court an obligation as part of their judicial duties to record their intention to 'withhold' a certificate in such cases as an ordinary judgment on a. criminal trial, or in a libel action, or a decree or judgment in an every-day case for the recovery of a trifling, sum of money, for example, in a normal action for a debt.
13. The High Court has, therefore, to grant, or withhold certificates only in cases where there is a reasonable possibility that the specified question arises or may arise. If in such a case the High Court has not considered the point and has not done what Section 205 requires it to do, there seems to be no doubt that a party can move the Court to rectify its own mistake, the duty being; cast on the High Court to consider the matter suo motu. But if there is no reasonable possibility either because no such question arises or because the question of interpretation of the Constitution Act or any Order in Council made thereunder is not mentioned or urged before the High Court, it cannot be said that the High Court has failed in the exercise of its duty, and in such a case an application should not lie.
14. We may make the point further clear by stating that if the duty is on the High Court to consider the question of granting a certificate by reason of the fact that there is a reasonable possibility that the specified question arises or may arise and the High Court has failed in its duty, the High Court should rectify its own mistake and a party should not suffer by reason of the mistake committed by the High Court. But the Judges of the High Court owe no duty to try and find out points for a party, and if the question of interpretation of the Government of India Act or of any Order in Council made thereunder was not canvassed, it cannot be said that the High Court has failed to do its duty and, therefore, no question of trying to rectify its own mistake arises. It seems to us that the duty cast under Section 205 is to give or withhold a certificate at the time when the High Court delivers its judgment. The decisions of their Lordships of the Judicial Committee in the two cases mentioned by us above, however, would seem to point that there is nothing in Section 205 which would prevent a High Court from rectifying its own mistake. In the second case their Lordships have indicated the circumstances in which the certificate may be withheld or granted by Judges other than those who delivered the original judgment. This also supports the view that an order under Section 205, subsequent to the delivery of the judgment, is possible.
15. In Padmanabham v. Kamaraju ('43) 30 A.I.R. 1943 Mad. 481 a learned Judge of the Madras High Court held that where a question of interpretation had not been raised and decided in the proceedings before the High Court, no certificate under Section 205 could be granted. The learned Judge said:
The last clause of Sub-section (1) of Section 205 would even seem to presuppose that the question was raised before the High Court, as otherwise it is difficult to see how it would be possible for that Court of its own motion to give or withhold a certificate such as is referred to in the Section.
With that view we are in full agreement.
16. Learned Counsel for the parties also cited before us the case in Emperor v. Tarachand Parsram 33 A.I.R. 1946 Sind 154. In view of the decision of the Privy Council which, to our mind, concludes the matter it is not necessary to discuss that case or the other cases that have been cited.
17. It has been pointed out to us that though the point was never considered, it has been the practice of the Court, in several cases to grant leave on applications being moved after the delivery of the judgment. Two of the cases are Lakshmi Iron & Steal . Delhi v. Radheylal Munni Lal : AIR1938All639 and Hafiz Mahomed v. Shiam Lal 31 : AIR1944All273 .
18. The result, therefore, is that we are of t the opinion that though an application for a certificate of the nature mentioned in Section 205, Government of India Act, 1935, can be filed even after the judgment has been pronounced in the case by the High Court, it can be filed only when the High Court has erred in not considering the question of the granting or the withholding of the certificate, that is, where the High Court has not considered the matter even though there was a reasonable possibility of a substantial question arising as to the interpretation of the Government of India Act, 1935, or any Order in Council made thereunder.
19. On the ground that the points now attempted to be raised before the Federal Court were not raised before the High Court and that the points do not raise any substantial question of law as to the interpretation of the Government of India Act or any Order in Council made thereunder, we dismiss Miscellaneous Application No. 437 of 1947, Miscellaneous Application Order 438 of 1947 and the Miscellaneous Application of Jamuna Singh, K. Kumar and Munshi Ram.
20. In the miscellaneous application of Moonga Ram where learned Counsel wants to raise, for the first time, before the Federal Court the question whether the United Provinces Foodgrains and Oilseeds (Movement) Control Order, 1943, is ultra vires the United Provinces Government, our attention has been drawn to the case in Roshan Lal v. Emperor : AIR1946All161 decided by Wali Ullah and Bennet JJ. in which the same Control Order came up for consideration. The learned Judges were asked to give leave on the ground that the case raised a substantial question of law as regards the interpretation of Section 297, Government of India Act, and the leave was granted. In the case, however, the validity of the Control Order was argued before the High Court and at the time of the delivery of the judgment leave was asked for. As Moonga Ram's case was decided by a Bench of Sankar Saran and Akbar Husain JJ, we consider it desirable that the case may be laid before that Bench for final orders on the point, and we order accordingly. We were presumably required to decide only the preliminary question of the maintainability of the application which arose in the case.