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H.N. Nolan and anr. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1944All118
AppellantH.N. Nolan and anr.
RespondentEmperor
Excerpt:
..... notwithstanding anything contained in the code of criminal procedure, 1898, no person accused or convicted of a contravention of these rules shall, if in custody, be released on bail or on his own bond, unless :(a) the prosecution has been given an opportunity to oppose the application for such release, and (b) where the prosecution opposes the application and the contravention is of any such provision of these rules as the central government or the provincial government may by notified order specify in this behalf, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention. this argument was considered and overruled by a bench of the madras high court in in re bhuvaraha iyengar air1942mad221 .i am in perfect agreement, if i may..........decision to this full bench relates to the validity or otherwise of rule 130a of the defence of india rules. the rule runs as follows:130a. notwithstanding anything contained in the code of criminal procedure, 1898, no person accused or convicted of a contravention of these rules shall, if in custody, be released on bail or on his own bond, unless : (a) the prosecution has been given an opportunity to oppose the application for such release, and (b) where the prosecution opposes the application and the contravention is of any such provision of these rules as the central government or the provincial government may by notified order specify in this behalf, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention.2. to begin with,.....
Judgment:

Iqbal Ahmad, C.J.

1. The question that has been referred for decision to this Full Bench relates to the validity or otherwise of Rule 130A of the Defence of India Rules. The rule runs as follows:

130A. Notwithstanding anything contained in the Code of Criminal Procedure, 1898, no person accused or convicted of a contravention of these rules shall, if in custody, be released on bail or on his own bond, unless : (a) the prosecution has been given an opportunity to oppose the application for such release, and (b) where the prosecution opposes the application and the contravention is of any such provision of these Rules as the Central Government or the Provincial Government may by notified order specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention.

2. To begin with, it is argued that the rule, casting as it does on the accused the burden of proving his innocence, is opposed to fundamental principles of criminal law and, as such, devoid of all legal efficacy. This argument was considered and overruled by a Bench of the Madras High Court in In re Bhuvaraha Iyengar : AIR1942Mad221 . I am in perfect agreement, if I may say so with respect, with the reasons assigned by the learned Judges of the Madras High Court in support of their conclusion, and I respectfully adopt those reasons and overrule this contention. It is next contended that the rule in question is beyond the rule-making power conferred on the Central Government by Section 2, Defence of India Act (No. 35 of 1939) and as such is ultra vires. In my judgment, there is no force in this contention. Section 2, inter alia, provides that:

2. (1) The Central Government may, by notification in the Official Gazette, 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.

(2) ....

(3) the rules made under Sub-section (1) may further

(i) provide for the arrest and trial of persons oon-travening any of the rules.

3. By Rule 130A the Central Government has made a special provision regarding the disposal of an application for bail made by a person accused or convicted of a contravention of the Defence of India Rules. This provision does, in my judgment, fall within the purview of Sub-section (3)(i) quoted above. The word 'arrest' in ordinary parlance means detention and custody. It is therefore manifest that the Central Government is, by virtue of the sub-section just mentioned, competent to make provision for the detention and custody of a person charged with the contravention of the rules. This being so, it is clear to my mind that it is within the competence of the Central Government to prescribe the conditions and limitations regarding such detention and custody. In other words, while making provision for the arrest of an offender, it is open to the Central Government to enact a rule that the offender shall not be released on bail and shall be detained in custody until acquitted or discharged. It follows that, while making provision for the arrest of an offender, the Central Government could prescribe the conditions which could justify the offender's release on bail. Rule 130A does no more than lay down the conditions which must be fulfilled before such an offender is released on bail and is therefore within the rule making authority of the Central Government.

4. Lastly, the validity of the Defence of India Act itself was assailed and it was contended that Section 2 of that Act was ultra vires the Central Legislature. The decision of the Federal Court in Keshav Talpade v. Emperor . furnishes a complete answer to this contention. It was urged in this connexion that the Central Legislature.

5. I by enacting Section 2 delegated its power of legislation to the Central Government and this was not permissible. A similar contention was advanced and was overruled by this Court in Meer Singh Emperor : AIR1941All321 and this decision appears to have been approved by the Federal Court in Keshav Talpade v. Emperor .

6. I have therefore no hesitation in holding that Rule 130A of the Defence of India Rules embodies a valid and binding provision of law. At the conclusion of the hearing we were asked to give a certificate under Section 205, Government of India Act, for appeal to the Federal Court. I am unable to accede to this request. The only question of law relating to the interpretation of the Constitution Act that was raised before us had reference to the validity or otherwise of Section 2, Defence of India Act. The Federal Court in Keshav Talpade v. Emperor has already decided that question, and it cannot therefore be said that the proposed appeal will involve any substantial question of law as to the interpretation of the Constitution Act. The certificate contemplated by Section 205 cannot therefore be granted.

Allsop, J.

7. I concur.

Mathur, J.

8. I concur and have nothing to add.

9. The answer to the reference is that Rule 180A of the Defence of India Rules embodies a valid and binding provision of law.


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