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State of Madhya Pradesh Vs. A.K. JaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Case NumberCriminal Revn. No. 13 of 1957
Judge
Reported inAIR1958MP162; 1958CriLJ767
ActsGeneral Clauses Act, 1897 - Sections 24; Code of Civil Procedure (CPC) , 1908; Mines Act, 1952 - Sections 2, 57 to 62, 73, 74 and 88; Constitution of India - Article 20
AppellantState of Madhya Pradesh
RespondentA.K. JaIn and ors.
Appellant AdvocateS.B. Sen, Govt. Adv.
Respondent AdvocateP.K. Tare and ;R.Y. Sirpurkar, Advs.
Cases ReferredG.D. Bhattar v. The State
Excerpt:
- - 57 to 62) and disobedience or contraventions of the rules, regulations or bye-iaws so framed was made punishable under sections 73 and 74. the central government in exercise of the powers conferred on it under section 58 of the new act framed rules called the mines rules, 1955, which came into force on and from 2-7-1955. in cases we are dealing with, contraventions or breaches complained of have been committed before january 1955, that is to say, much before the mines rules 1955, came into force. 4. the case for the prosecution is that by virtue of section 24 of the general clauses act, the rules, regulations, and bye-laws made under the old act are continued in force and are deemed to have been made or issued under the provision of the new act and consequently the breaches.....order1. the order in this criminal revision shall also govern criminal revisions nos. 14 to 17 of 1957 and criminal appeals nos. 302 of 1956 and 107 of 1957, in so far as the tenability of the prosecutions are concerned under sections 73 and 74 of the mines act (act no. xxxv of 1952). this order will dispose of the criminal revisions completely because there the trials have yet to take place and the matter has come up before us on references by the sessions judge, chhindwara, under section 438 of the code of criminal procedure, recommending that the prosecutions initiated on the basis of the alleged contraventions of the rules, regulations and bye-laws made under the indian mines act, 1923 and deemed to have been made under the mines act, 1952, read with section 24 of the general clauses.....
Judgment:
ORDER

1. The order in this criminal revision shall also govern criminal revisions Nos. 14 to 17 of 1957 and criminal appeals Nos. 302 of 1956 and 107 of 1957, in so far as the tenability of the prosecutions are concerned under Sections 73 and 74 of the Mines Act (Act No. XXXV of 1952). This order will dispose of the criminal revisions completely because there the trials have yet to take place and the matter has come up before us on references by the Sessions Judge, Chhindwara, under Section 438 of the Code of Criminal Procedure, recommending that the prosecutions initiated on the basis of the alleged contraventions of the rules, regulations and bye-laws made under the Indian Mines Act, 1923 and deemed to have been made under the Mines Act, 1952, read with Section 24 of the General Clauses Act, be quashed.

Criminal Appeal No. 302 of 1956 and criminal appeal No. 107 of 1957 are appeals against) acquittals. The acquittals are based on a question of law similar to the one arising in the aforesaid criminal revisions but as they have also been argued on facts, the factual part of the case will be discussed by us when dealing with those appeals individually.

2. All these criminal references and the appeals raise one common point, namely, whether the non-applicants in criminal revisions Nos. 13 to 17 of 1957 and the respondents in criminal appeals Nos. 302 of 1956 and 107 of 1957 can be punished under Sections 73 and 74 of the Mines Act, 1352 (Act No. XXXV of 1952) for acts which are alleged to be contraventions of the rules, regulations or bye-laws framed under the provisions of Chapter VII of the Indian Mines Act, 1923 (Act No. IV of 1923), but which have been continued to be in force and are deemed to have been made under the Mines Act, 1952, by virtue of Section 24 of the General Clauses Act.

3. Under the Indian Mines Act, 1923 (hereinafter called the old Act), certain rules, regulations and bye-laws were made under the provisions contained in Chaper VII (Sections 29 to 33) and their contraventions were made punishable under Sections 39 and 40 of that Act. In 1952, the old Act was repealed and re-enacted with certain modifications as the Mines Act, 1952 (Act No. XXXV of 1952) (hereinafter called the new Act).

By Section 88 of the. new Act, which repealed the old Act, no express saving was made with respect to the rules, regulations and bye-laws then in force nor were any new rules, regulations -or bye-laws framed under the new Act. Under the new Act, power to make rules, regulations and bye-laws was conferred on the Central Government under Chapter VIII (Ss. 57 to 62) and disobedience or contraventions of the rules, regulations or bye-iaws so framed was made punishable under Sections 73 and 74.

The Central Government in exercise of the powers conferred on it under Section 58 of the new Act framed rules called the Mines Rules, 1955, which came into force on and from 2-7-1955. In cases we are dealing with, contraventions or breaches complained of have been committed before January 1955, that is to say, much before the Mines Rules 1955, came into force.

4. The case for the Prosecution is that by virtue of Section 24 of the General Clauses Act, the rules, regulations, and bye-laws made under the old Act are continued in force and are deemed to have been made or issued under the provision of the new Act and consequently the breaches complained of can be punished under the provisions of Sections 73 and 74 of the new Act.

The contention on behalf of the accused is that the breaches complained of are not punishable under the provisions of the new Act. Their contention was rejected by the trial Court, but the learned Sessions Judge, Chhindwara, has referred these cases to this Court under Section 438 of the Code of Criminal Procedure with a recommendation that the prosecutions so far as they relate to the contraventions of the regulations and bye-laws framed under the old Act be quashed on the ground that Sections 73 and 74 of the new Act make punishable contraventions of regulations and bye-laws made under the new Act and not regulations and bye-laws which are to be deemed to have been made under the new Act.

5. The learned counsel for the non-applicants who has appeared in support of the reference contends:

1. that Section 24 of the General Clauses Act cannot keep the rules, regulations and bye-laws made under the old Act alive because the so-called rules, regulations and bye-laws framed under the old Act are not rules, regulations and bye-laws simpliciter but a part of the Act itself and consequently they stand repealed when the old Act was repealed by Section 88 of the new Act;

2. that even if these rules, regulations and bye-laws are kept alive by virtue of the provisions of Section 24 of the General Clauses Act, the breaches complained of cannot be punishable under Sections 73 and 74 of the new Act; and

3. that as the rules, regulations and bye-laws are kept alive by a legal fiction, they are not laws in force within the meaning of Article 20 of the Constitution.

We will now examine these contentions seriatim.

6. It is not disputed and cannot be disputed that but for Section 24 of the General Clauses Act, the rules, regulations and bye-laws made under the old Act would not have been operative to make their contraventions punishable in December 1954 and the prosecutions initiated against the accused-non-applicants would have failed.

The question therefore is what is the effect of Section 24 of the General Clauses Act on the repeal of the old Act by the new Act.

7. It is settled law that a repealing statute, in the absence of saving clauses, operates from its commencement, whether the alteration of the law affected by it has to do with procedure or with matter of substance, and a repealed Act, in the absence of saving clauses, and except as to transactions passed and closed, must be considered as if it had never existed, and that a bye-law made under a statute which is repealed is abrogated unless it is preserved by the repealing statute by a saving clause or otherwise. See Halsbury's Laws of England, 2nd Edition, Vol. 31, paragraphs 758 and 768.

8. Whenever an Act is repealed and re-enacted, the repealing Act would require complicated saving clauses to preserve the various provisions of the Act which if allowed to be obliterated with the repealed Act, would not only destroy the continuity of the objects and purposes of the Act but work great hardship and injustice. This is avoided by incorporating these complicated clauses in a general saving statute like the General Clauses Act.

In England, this purpose is achieved by the Interpretation Act, 1889, because as pointed out in Halsbury's Laws of England, Vol. 31, (2nd Edition), para 761, after the coming into force of the Interpretation Act, 1889, 'sayings have, by the operation of the Interpretation Act, 1889, automatically attached to a repeal'. Explaining the purpose of such general saving statutes, the learned authors of Sutherland's Statutory Construction, vol. 2 (para 4938), say:

'A Legislature may enact a general saving statute which will save rights and remedies except where a subsequent repealing Act indicates that it was not the legislative intention that the rights and remedies should be saved. Although a Legislature cannot bind future Legislatures and each subsequent Legislature can make its laws prevail over any preceding Legislature, yet as all Legislatures are presumed to act with a knowledge of existing law, it is presumed that they act with reference to any general saving statute.

Thus, when a repeal is enacted unaccompanied by a provision saving existing rights which would be affected by its action, it is presumed that the Legislature has acted with' the intent to afford the protection of the general saving statute. In such cases the repealing Act is to be considered as limited in its effect and operation in the same manner and to the same extent as if it contained the cusomary saving clause.'

Section 24 of the General Clauses Act will, therefore, have to be read along with the new Act in order to determine whether the rules, regulations and bye-laws framed under the old Act are kept alive even after the repeal of the old Act by the new Act and even though there is no express saving clause in the repealing Act.

9. Section 24 of the General Clauses Act, so far as is relevant for our present purposes, says:

'Where any Central Act ...... is, after the commencement of this Act, repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided, any x x x rule x x x or bye-laws made or issued under the repealed Act x x x shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any x x rule x x or bye-laws made or issued under the provisions so re-enacted.'

10. It has not been disputed before us that the old Act was 'repealed and re-enacted with modification' as the new Act. A reading of the two Acts clearly shows that it dealt with the same subject-matter and except that the new Act has made certain additional provisions, the new Act is substantially the same as the old one, and the word 'modification' is comprehensive enough to include such additions as have been made in the Act.

We will hereafter see whether there is any express provision to the contrary in the new Act which would make Section 24 of the General Clauses Act inapplicable. But for such an express provision, the effect of this section would be that a rule, regulation (the definition of a 'rule' in the General Clauses Act includes a 'regulation') or a bye-law made under the repealed old Act shall--

(i) continue in force, and

(ii) be deemed to have been made or issued under the new Act.

11. The result therefore is that not only the rules, regulations and bye-laws made under the old Act continue in force but that by a legal fiction they are also made to become the rules, regulations and bye-laws made or issued under the new Act so that their disobedience or contravention becomes Punishalble under Sections 73 and 74 of the new Act.

12. The learned counsel for the non-applicants wants to take them out of the operation of Section 24 of the General Clauses Act on the ground that 'the rules, regulations & bye-laws' made under the old Act are not 'the rules, regulations and bye-laws as defined in the General Clauses Act.

He contends that the old Act provides under Section 31(4) for the rules and regulations and under Section 32 (5) for the bye-laws that on their publication or approval as the case may be, they shall have effect 'as if enacted in this Act' and consequently these rules, regulations and the bye-laws cease to be rules, regulations and bye-lawssimpliciter, but they become a part of the Act and being a part of the Act, they can only be saved by such saving clauses as are used for saving parts of a statute and not by saving clauses which are used for saving statutory rules or regulations.

13. Reliance is placed on the decisions in Institute of Patent Agents v. Lockwood, 1894 AC 847 (A); and Kandasami Pillai v. Emperor, ILR 42 Mad 69: (AIR 1919 Mad 24) (B). In the former case, Lord Herschell L. C. ruled that by the use of the words 'be of the same effect as if they were contained in this Act,' the statutory 'Rule' became a part of the Act itself and therefore was as exempt from judicial review as the statute itself and in the latter case a Division Bench of the Madras High Court held that the rules framed under Section 2 of the Defence of India Act were,' by virtue of Sub-section (3) of Section 2 which made those rules as if they were enacted in the Act, part of the section under which they were framed.

The question whether they were part of the Act or of the section became of importance because if the rules were to form part of the Act, then as the rest of, the Act had not come into force, the rules would have been of no effect. The learned Judges therefore observed at P. 73: (of ILR Mad): (at p. 25 of AIR):

'It is of course our duty to construe an Act in such a manner as to give effect to its provisions' if it is possible to do so, and this can be done by reading the rules, as part of the section under which they are framed and not as part of the rest of the Act.

It is quite clear that where Section , Sub-section (3) was speaking of the rest of the Act coming into operation, it was referring to the subsequent sections and not to the rules which are to be framed under Section 2 and to have effect as if enacted in this Act.'

14. The learned counsel for the non-applicants wants us to draw the inference from these cases that the invariable effect of the expression 'as if enacted in this Act' is to make the statutory rules parts of the statute for all purposes. In our opinion, such an inference is not permissible.

When the Legislature says that rules, regulations and bye-laws which have been framed under the statutory powers conferred by the Act 'shall have effect as if enacted in this Act', it is adopting the well-known device of legal fiction whereby we are bidden to treat 'Rules' not framed under the Act as the 'Rules' framed under the Act. In such cases canons of construction which are usually applicable for interpreting legal fictions will have to be resorted to.

15. In Cover's Case: In re, Coal Economising Gas Co., (1S75) 1 Ch D 182 at p. 188 (C), James L. J., when dealing with a legal fiction said,

'The Act says that an omission shall be deemed fraudulent. It provides that something which under the general law would not be fraudulent shall be deemed fraudulent; and we are dealing with a case of that kind. Where the Legislature provides that something is to be deemed other than what it is, we must be careful to see within what bounds and for what purpose it is to be so deemed.'

Again, the same learned Judge in Ex parte Walton. In re, Levy, (1881) 17 Ch D 746 at P. 756 (D), said :

'When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purpose and between what persons the statutory fiction is to be resorted to.'

16. It has been a matter of some debate in England as to what exactly is the purpose and effect of the legal fiction by the use of the expression 'as if enacted in this Act' in legislative enactments. Alien in Law and Orders (page 295) points out that the formula ('as if enacted in this Act') has had a number of variants--such as 'as it were enacted by Parliament', 'purporting to be made under the Act', 'shall be deemed to be within the powers conferred by this Act', --all apparently with the object of making the instrument inviolable.

Reading the various cases dealing with this topic, it appears to us that the first purpose was to make a rule as inviolable or exempt from judicial review as an Act of Parliament -- for whereas you may canvass a rule and determine whether or not it was within the power of those who made it, you cannot canvass in that way the provision of an Act of Parliament.

The second was to determine the rule of construction in case there was repugnancy between the provision of the Act and a statutory rule made thereunder. On this latter subject there was a sharp difference of judicial opinion for whereas the Herschell Rule laid down in 1894 AC 347 (A), would enable a statutory rule, which by legal fiction, has been given the status of an Act, to prevail over an earlier provision of the Act, the rule laid down by Lord Dunedin in R. v. Minister of Health, ex parte Yaffe, 1931 AC 494 (E), is that the statutory rule would, have to give way to the Act if it is in conflict with it because as His Lordship put it :

'The confirmation makes the scheme speak as if it was contained in an Act of Parliament, but the Act of Parliament in which it is contained is the Act which provides for the framing of the scheme, not a subsequent Act.'

The matter, however, is not of any importance because it is now a settled canon of construction that--

'Rules must be read together with their relevant Act; they cannot repeal or contradict express provisions in the Act from which they derive their authority. If the Act is plain, the rule must be interpreted so as to be reconciled with it, or, if it cannot be reconciled, the rule must give way to the plain terms of the Act.'

(Odgers, The Construction of Deeds and Statutes, 3rd edition (1952), page 303, and Halsbury's Laws of England, 2nd Edition, Vol. 31, para 575).

17. In India also, the question is not of any practical importance because here even an Act of Parliament is not exempt from judicial scrutiny and so far as statutory rules are concerned, it is well established that if the rules framed under the statute are in excess of the provisions of the statute or are in contravention of or inconsistent with such provisions, then these rules must be regarded as ultra vires of the statute and cannot be given effect to. See Barisal Co-operative Central Bank Ltd. v Benoy Bhusan. AIR 1934 Cal 537 (P), as also State v. Kunja Behari, AIR 1954 Pat 371 at p. 379 (FB), (G).

18. The phrase 'as if enacted in this Act' therefore in the words of Sir William Graham Harrison who has exhaustively reviewed both Lockwood's case (A), and the relevant cases in which it has been cited or dealt with judicially is 'merely a survival, a common form, which may originally have served a useful purpose, but which, in view of the decisions of the courts, has long ceased to serve any purpose at all.'

We are therefore of opinion that if the purpose of the legal fiction whereby the statutory rules etc., are given the artificial status of becoming a part of an enactment is to make them exempt from judicial review, they have failed to achieve that purpose and if it was to settle a rule of statutory construction to make even a rule repugnant to the provisions of an Act prevail over an earlier section, if any, on the basis of the rule enunciated by Lord Herschell L. C. in Lockwood's Case (A), then again it has failed to achieve that purpose.

We do not agree with the learned counsel for the non-applicants that the purpose of the legal fiction in the instant case was to make the statutory rules part of the old Act so that they would be obliterated as completely as the old Act itself on its repeal and not kept alive on its repeal and re-enactment. To ascribe such an intention to the Legislature would be to defeat the very purpose for which the new Act was enacted.

We see no valid reason why the Legislature would intend to exempt the contravention of safeguards which are absolutely necessary for the regulation of labour and safety in mines' for the period that rules, regulations and by-laws are not framed under the new Act. We therefore refuse to ascribe a purpose to the legal fiction which would make us arrive at such mischievous and absurd result.

19. The learned Counsel also brought to our notice various provisions in the Companies Act, Insurance Act, Motor Vehicles Act etc., to demonstrate the fact that the Legislature has made a difference between Rules and Rules (though both are made under the power of delegated legislation). To some rules it has given the status of being part of the Act by the use of 'as if enacted in this Act' clause and to others this status has not been given.

It is true that this distinction has been made. (For example, sec Sections 645 and 657 of the Companies Act, 1956), but, as already pointed out, the use of the expression 'as if enacted in this Act' in these enactments is 'a survival, a common form, which may originally have served a useful purpose, but which, in view of the decisions of the courts, has long ceased to serve any purpose at all. In our opinion, these are only drafting anomalies which have no special significance.

20. We may further point out that what we are concerned with for purposes of Section 24 of the General Clauses Act is 'a rule or a bye-law made or issued under the repealed Act' and it cannot be denied that the rules and bye-laws made or issued under the repealed Act, whatever their effect might have been by virtue of Section 31 (4) or Section 32 (5) when the old Act was in force, are none the less 'rules and bye-laws made or issued under the repealed Act'. These words 'rules and bye-laws made under the repealed Act' in Section 24 of the General Clauses Act are descriptive of the rules and bye-laws made under the old Act.

21. We therefore have no doubt that there is no substance in the contention of the learned counsel for the non-applicants that the rules, regulations and bye-laws made or issued under the old Act are not kept operative by Section 24 of the General Clauses Act.

22. The learned counsel then contends that even if these rules, regulations and bye-laws are kept alive by virtue of Section 24 of the General Clauses Act, the breaches complained of cannot be punished under Sections 73 and 74 of the new Act because these sections make punishable any disobedience or contraventions of the provisions of 'that Act' or of any rules, regulations or bye-laws made under 'that Act' and that the rules, regulations and bye-laws made under the provisions of the old Act cannot be said to be 'rules, regulations and bye-laws' as envisaged in these sections.

This argument loses sight of the fact that by virtue of Section 24 of the General Clauses Act, the rules, regulations and bye-laws made under the old Act are not only continued in force after the repeal and re-enactment of the old Act but are also deemed to have been made or issued under the provisions of the new Act. By this legal fiction, the rules, regulations and bye-laws made under the old Act are, for all intents and purposes, to be taken as if they are rules, regulations and bye-laws made under the new Act.

We are therefore of opinion that the contraventions of rules, regulations and bye-laws made under the old Act are punishable under Sections 73 and 74 of the new Act.

23. The learned counsel for the non-applicants then points out that the expressions 'regulations', 'rules' or 'bye-laws' occurring in Sections 73 and 74 of the new Act have been defined in Section 2 (o) thereof to mean respectively 'regulations, rules and bye-laws made under, this Act', that is to say, under the Act of 1952.

He therefore contends that as they have not included within the ambit of these expressions rules, regulations and bye-laws 'which are deemed to have been made under this Act', the contraventions of these fictional rules, regulations and bye-laws (i.e. rules, regulations and bye-laws which by legal fiction are said to have been made under the new Act) cannot be punishable under Sections 73 and 74 of the new Act. In our opinion, it was not necessary to have expressly provided in the new Act that the rules, regulations and bye-laws deemed to have been made under that Act were also within the meaning of the expressions 'rules', 'regulations' and bye-laws' as defined in Section 2(o) of the new Act.

It is clear that the purpose of creating the legal fiction in Section 24 of the General Clauses Act was to give extended and continued operation to the rules, regulations and bye-laws framed under the old Act which but for the saving clause would have been obliterated from the statute book as completely as the provisions of the old Act had been obliterated by the repealing section in the new Act.

Once, therefore, the statutory fiction is made operative, the rules, regulations and bye-laws made under the old Act become as effectively the rules, regulations and bye-laws under the new Act as if they had been made under the new Act and as observed by Lord Mansfield in Mostyn V. Fabrigas, (1775) 98 ER 1021 at p. 1030 (H),

'that a fiction of law shall never be contradicted so as to defeat the end for which itwas invented, but for every other purpose it may be contradicted.'

We are therefore of opinion that the breaches complained of are punishable under Sections 73 and 74 of the new Act.

24. It cannot be disputed and it has not been disputed that the 'rules', 'regulations' and 'bye-laws' made or issued under the old Act are inconsistent with the provisions of the new Act. It is, however, contended that the definition Clause 2 (o) of the new Act furnishes the key for the interpretation of the Act so that recourse to the General Clauses Act for the purpose of interpretation was impliedly barred.

It is further contended that this restricted definition of these expressions in Section 2(o) of the new Act ought to be construed as the provisions which 'otherwise expressly provides' so that Section 24 of the General Clauses Act would not be applicable to the new Act. The learned counsel for the non-applicants by way of an illustration also pointed out that where the Legislature as in Section 7 (2) of the Essential Supplies (Temporary Powers) Act wanted to give an extended meaning to the expression 'order' by including within its meaning fictional orders as well, it clearly said 'Any order made or deemed to have been made etc.'

It was, therefore, argued that the absence of such a comprehensive expression in Section 2(o) indicated that fictional rules, regulations and bye-laws 'were not meant to be included in the expression 'rules, regulations and bye-laws made or issued under this Act.'

25. In our opinion, the function which the deeming clause performed in Section 17 (2) of the Essential Supplies (Temporary Powers') Act is performed by Section 24 of the General Clauses Act here, and the absence of a deeming clause in Section 2(o) cannot be taken to mean 'an express provision to the contrary' within the meaning of Section 24 of the General Clauses Act.

In order to bar the application of Section 24, it was necessary to have in terms provided that fictional ' rules, regulations and bye-laws would not be included within the meaning of the rules, regulations and bye-laws as defined in Section 2(o) of the Act.

26. A literal interpretation which would defeat the purpose of a legal fiction has time and again been discountenanced by the Courts. In Commissioner of Income-tax, Bombay v. Bombay Trust Corporation, Ltd., ILR 54 Bom 216 at p. 223 : (AIR, 1.930 PC 54 at p. 55) (I), the Judicial Committee of the Privy Council ruled:

'Now when a person is 'deemed to be' something, the only meaning possible is that whereas he is not in reality that something the Act of Parliament requires him to be treated as if he were, it follows that although the High Court was perfectly right in holding that if Section 42 stood alone 'agent' in that section would mean an agent in actual receipt of the profits or gains, which were to be assessed, they failed to appreciate that Section 43 puts the person who comes within its terms artificially into the position of the agent and of assessee under Section 42.'

27. In State of Bombay v. Pandurang, AIR 1953 SC 244 (J), the question arose whether a legal fiction created by virtue of Section 5 (1) of the Bombay Building (Control on Erection) Act, 1948, wherein it was provided that the provisions of Sections 7 and 25, Bombay General Clauses Act, shall apply to the repeal as if the ordinance were an enactment, operated to permit the reading of the word 'Act' in place of the word 'Ordinance' in a notification issued under the repealed Ordinance

The High Court had held that the word 'Act' instead of 'Ordinance' could not be read in the words of the notification by the force of Section 25 of the Bombay General Clauses Act (similar to Section 24 of the General Clauses Act). Overruling this view, the Supreme Court said,

'If the purpose of the statutory fiction mentioned in Section 5 is kept in view, then it follows that the purpose of that fiction would be completely defeated if the notification was construed in the literal manner in which it has been construed by the High Court. In East Edn Dwellings Co. v. Finsbury Borough Council, 1952 AO 109 (K), Lord Ascquith while dealing with the provisions of the Town and County Planning Act 1947, made reference to the same principle and observed as follows:

'If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it .....

The Statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.'

The corollary thus of declaring the provisions of Section 25, Bombay General Clauses Act, applicable to the repeal of the ordinance and of deeming that ordinance as an enactment is that wherever the word 'ordinance' occurs in the notification, that word has to be read as an enactment.'

28. Similarly in Wamanrao v. Chief Executive Officer, Janapada Sabha, Chandur, ILR (1954) Nag 915: (AIR 1955 Nag 110) (PB) (L), the question arose whether when Section 8 (4) of the C. P. and Berar Municipalities Act said that the President and Vice-Presidents shall in all cases be deemed to be members under the Act, the legal fiction operated to make them members of a Municial Committee within the meaning of Section 7 (2-a) of the C. P. and Berar Local Government Act (Act XXXVIII of 1948), when it only used the expression 'Every person who is a member for the time being of a Municipal Committee ..... etc .....' and did not expressly say that every person who is a member or is deemed to be a member for the time being of a Municipal Committee etc. .........'

The Pull Bench ruled that the President and Vice-Presidents must be treated as members of the municipal committee for all purposes in view of the legal fiction created by virtue of Section 8 (4) of the C. P. and Berar Municipalities Act.

29. We therefore hold that there is no force in the contention of the learned counsel for the non-applicants on this point.

30. The third contention of the learned counsel for the non-applicants is that as these rules, regulations and bye-laws are kept alive by a legal fiction, they are not laws in force with in the meaning of Article 20 of the Constitution.

In support of this contention, he also relies on a decision of the Supreme Court in Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1953 SC 394 (M), and on a decision of the Andhra High Court reported in In re Lingareddi Venkatareddy, AIR 1956 Andh 24 (NX In our opinion, the decision in the Supreme Court case has no relevance to the facts of these cases. There, their Lordships of the Supreme Court while interpreting the phrase 'law in force' as used in Article 20 of the Constitution stated:

' 'Law in force' referred to therein must be taken to relate not to law 'deemed' to be in force and thus brought into force but the law factually in operation at the time or what may be called the then existing law.'

Their Lordships were in that case dealing with ex post facto laws and it is in that context that they said that the 'law in force' must be the law which was factually in operation on the date of the commission of the offence and not the law which by legal fiction is made operative by virtue of the power of the Legislature to pass retrospective laws.

In the case before the Supreme Court, the offence was committed between February 1949 and April 1949 and the Ordinance by which the Penal Code was adapted in the United State of Vindhya Pradesh was passed on 11-9-1949, and the question their, Lordships were considering was whether the law made subsequently but by legal fiction made to operate from a date anterior to its passing can be said to be 'law in force' within the meaning of Article 20 of the Constitution.

31. The facts in the, instant case are quite different. Here the legal fiction operated from the moment of the passing of the new Act and from that date rules, regulations and bye-laws made or issued under the old Act were deemed to have been made or issued under the new Act. On the date of the commission of the offence, therefore, they were the 'laws in force', 'the then existing laws' which had been factually in operation from the date of the coming into force of the new Act (in the sense in which the word 'factually has been used by the Supreme Court)' and not by virtue of any power of the Legislature to pass retrospective laws.

32. In the Andhra case no doubt their Lordships interpreted the phrase 'law in force' as excluding the laws in force by virtue of a legal fiction on the authority of the aforesaid Supreme Court decision. With all respect to their Lordships of the Andhra High Court, we are of opinion that the learned Judges were reading much more in the Supreme Court case than the judgment of that case warranted.

The observations of their Lordships of the Supreme Court were with reference to ex post facto laws and their observations cannot be extended to holding that the expression 'law in force' occurring in Article 20 of the Constitution does not include laws which are in force by virtue of any legal fiction irrespective of the fact that they were not made by virtue of the power of the Legislature to make retrospective Laws.

We also note that the view taken by the Andhra High Court has been dissented from by the Calcutta High Court in G.D. Bhattar v. The State, (S) AIR 1957 Cal 483 (O). We respectfully agree with the Calcutta decision on the point.

33. We are therefore of opinion that the references are misconceived. The contraventions complained of are punishable under Sections 73 and 74 of the new Act. The cases (Criminal Revisions Nos. 13 to 17 of 1957) will have therefore to go back for trial according to law. The references are rejected and the cases are sent back to the trial Court for trial according to law.


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