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Waman Sadashiv Kulkarni Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh
Decided On
Judge
Reported inAIR1950MP23; 1950CriLJ742
AppellantWaman Sadashiv Kulkarni
RespondentState
Excerpt:
.....no offence was committed and no retrospective effect can be given to madhya bharat regulation act, samvat 2005, which received the assent of rajpramukh on 13th december 1948. 3. before this, on 3rd june 1948, the rajpramukh of madhya bharat had promulgated ordinance to provide for peace and good government of the state of madhya bharat. 7. article 10 of the covenant provided that until a constitution, framed by the constituent assembly comes into operation after receiving the assent of the rajpramukh ,the rajpramukh shall have powers to make and promulgate ordinances for the peace and good government of the united state or any part thereof and any ordinance so made shall for the space of not more than six months from its promulgation have the force of law as an act passed by interim..........new laws were not brought into operation.6. section 1, clause 3, gave in clear words retrospective effect to regulation act no. 1 of 1948. it shall be deemed to have come into force from 3rd december 1948. the legislature has sovereign powers to give retrospective effect to an act. the object was not to unsettle the law a that prevailed but to continue them. the intention of the legislature is quite clear and it is expressed in clear words in 8. l el. 3,regulation act to give retrospective effect.7. article 10 of the covenant provided that until a constitution, framed by the constituent assembly comes into operation after receiving the assent of the rajpramukh , the rajpramukh shall have powers to make and promulgate ordinances for the peace and good government of the united state or any.....
Judgment:
ORDER

Mehta, J.

1. The facts leading to this criminal revision are as follows: On 9th December 1948, some forty-one people belonging to R. S. S. led a procession. One of the arrested man was Waman Kuikarni, the present applicant. They were challaned under Notification No. 2fi dated 20th October 1930, which required previous per- mission of Inspector-General of Police before taking out a procession. Second count was contravention of Section 17, Criminal Law Amendment Act and 8. 188, Penal code. The accused applicant was convicted Under Section 17 (1), Criminal Law Amendment Act and for contravention of Notification No. 25, dated 20th October 1930, and sentenced to 6 months rigorous imprisonment and fine of Hs. 75 on each counts and in default of fine 6 weeks further period of simple imprisonment the sentences to run concurrently. The conviction and sentence was passed by the District Magistrate, City Indore. The appeal preferred by Kuikarni to the Court of Sessions Judge, Indore, was rejected. Hence this revision.

2. Mr. Samvatsar, learned pleader for the applicant argued that on 9th December 1948 when the procession was taken out by R. S. S. people, no offence was committed and no retrospective effect can be given to Madhya Bharat Regulation Act, Samvat 2005, which received the assent of Rajpramukh on 13th December 1948.

3. Before this, on 3rd June 1948, the Rajpramukh of Madhya Bharat had promulgated Ordinance to provide for peace and good Government of the State of Madhya Bharat. According to 3. 3 of the Ordinance, when the administration of any covenanting state has been taken over by the Rajpramukh as aforesaid .....all laws, Ordinances, Acts, Rules, Regulations etc.. having the force of law in the said state shall continue to remain in force until repealed or amended and shall be construed as if references in them to the Rulers of the State were references to the RajPramukh or Government of United State. No doubt this Ordinance was passed with the object that the laws etc., prevailing in Covenant-ing States should not be unsettled. Mr. Samvatsar urged that the life of an Ordinance is 6 months and that it expired on midnight of 2nd December 1948-Thereafter no fresh Ordinance was issued but on 13th December 1948, the Regulation Act no. 1 of 1948 of United State of Gwalior, Indore and Malwa was published. It received the assent of Rajpramukh on 13th December 1948. However B. 3 of the Act stated that it shall be deemed to have come into force from 3rd December 1948,

4. Mr. Samvatsar contended that no retrospective effect could be given to Regulation Act No. 1 of 1948-On 9th December, it was no offence to take out procession by Rule 8. S. because the Ordinance had expired and there was no law. Hence by giving retrospective effect to Act No, l of 1948 something which was not an offence can. not be converted into a criminal offence. Mr. Samvatsar cited a ruling of High Court of United States of Saurashtra, criminal Appeal No. 49 of 1948 - It is a judgment of Divatia C, J. The proposition relied on in that judgment is that in criminal matters no retrospective effect can be given to offences which might be newly created by a statute.

5. In my opinion the argument advanced by Mr. Samvataar that between 3rd December 1948, when the Ordinance No. 1 of 1948 expired till 13th December 1948, when the Regulation Act No. l of 1918, was passed by Legislature there was a dark interval, and there was lawless reign, could not prevail. It would lead to absurd situation and all offences committed, between 3rd December, and 13th December, would go unpunished because the old laws had expired and new laws were not brought into operation.

6. Section 1, Clause 3, gave in clear words retrospective effect to Regulation Act No. 1 of 1948. It shall be deemed to have come into force from 3rd December 1948. The Legislature has sovereign powers to give retrospective effect to an Act. The object was not to unsettle the law a that prevailed but to continue them. The intention of the legislature is quite clear and it is expressed in clear words in 8. l el. 3,Regulation Act to give retrospective effect.

7. Article 10 of the Covenant provided that until a constitution, framed by the constituent assembly comes into operation after receiving the assent of the Rajpramukh , the Rajpramukh shall have powers to make and promulgate ordinances for the peace and good Government of the United State or any part thereof and any ordinance so made shall for the space of not more than six months from its promulgation have the force of law as an act passed by interim Legislature or as the case may be, the constituent assembly, but any such ordinance may be controlled or superseded by any such Act. After the Ordinance no. l of 1948 lapsed on 3rd December 1948, the interim Legislature passed Regulation Act no. l-of 1948 which came into force on 3rd December 1948. Section 4 of the Act is exactly, in the same words as Section 8, Ordinance No. 1 of 1948 viz- when the administration of any covenanting State has been taken over by the Rajpramukh , all Laws, Ordinances, Acts, Rules, Regulations etc, having the force of law in the said State shall continue to remain in force until repealed or amended under the provisions of the next succeeding section and shall be construed as if references in them to the Ruler or Government of the State were references to the RajPramukh or the Government of United State respectively. Hence the scheme of the covenant is not to create a chaos or lawless reign but to continue the laws for peace and good Government. After the lapse of the ordinance the interim legislature gave recognition to the same policy by enacting Section 4, Regulation of Government Act, no. l of 1948.

8. The interim legislature had sovereign powers without any restriction to make laws and to give effect to them retrospectively in clear words. I would, therefore, hold that the Regulation Act, No. 1 of 1918, giving retrospective effect to the Act, is valid and it would come into operation from 3rd December 1948.

9. The Rulings of Saurashtra High Court cited by Mr. Samvatsar is not applicable to the facts of this case. In that case by a statutory notification the Durbar of Maugrol tried to validate previous notification which was clearly ultra vires. Here the interim legislature has passed the Regulation Act no. l of 1948 giving it a retrospective effect and it has the power to do so,

10. As regards the sentence, the accused applicant has already suffered the substantive term of imprisonment for 6 months. He is now undergoing sentence for default in payment of fine of Rs. 76, RSection 150 on two counts.

11. In view of the recent declaration of Madhya Bharat Government removing the ban on R. S. S., I think, the ends of justice will be served by remitting the sentence of fine and the accused applicant should be set free and the sentence of fine is set aside,


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