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Saradhakar Naik and ors. Vs. the King - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa
Decided On
Case NumberCriminal Misc. Nos. 2, 3, 4 and 5 of 1948
Judge
Reported inAIR1950Ori89
ActsGovernment of India Act, 1935 - Sections 205 and 207
AppellantSaradhakar Naik and ors.
RespondentThe King
Appellant AdvocateP. Misra, Adv.
Respondent AdvocateAdv. General, ;G.C. Das and ;B. Mohapatra, Advs.
DispositionPetition rejected
Cases ReferredNational Telephone Co. v. Post Master
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....ray, c.j.1. the subject-matter of this order is a petition by the petitioners in cr. misc. cases nos. 2, 3, 4 and 5 of 1948, for a certificate under sub-section (i) of section 205, government of india act, 1935, as adapted.2. the question is not free from difficulty. it is due to an anomalous position arising out of the fact that the cases arise out of certain criminal proceedings, started against the petitioners, under laws extended to the areas of bamra and kalahandi states,--not being parts of the province of orissa--by the government of orissa, in exercise of a jurisdiction delegated to them by the government of indian dominion under extra provincial jurisdiction act. the questions that call for solution are :'(a) whether the federal court of india has jurisdiction in the areas in.....
Judgment:

Ray, C.J.

1. The subject-matter of this order is a petition by the petitioners in Cr. Misc. Cases NOS. 2, 3, 4 and 5 of 1948, for a certificate under Sub-section (i) of Section 205, Government of India Act, 1935, as adapted.

2. The question is not free from difficulty. It is due to an anomalous position arising out of the fact that the cases arise out of certain criminal proceedings, started against the petitioners, under laws extended to the areas of Bamra and Kalahandi States,--not being parts of the Province of Orissa--by the Government of Orissa, in exercise of a jurisdiction delegated to them by the Government of Indian Dominion under Extra Provincial Jurisdiction Act. The questions that call for solution are :

'(a) Whether the Federal Court of India has jurisdiction in the areas in which the oases arose ; and

(b) Whether the order of this Court, in relation to the States area, is subject to the appellate jurisdiction of the Federal Court.'

3. The Federal Court has been re-established as a Court for India (meaning the Dominion of India) by the Federal Court Order, 1947. The preamble of the Order reads :

'In exercise of the powers conferred by Section 9 (1) (i) Indian Independence Act, 1947, and of all other powers enabling him in that behalf, the Governor-General is pleased to make the following order.'

4. Paragraph 4 (i) of the Order provides for establishing the Court in the following words :

'The Federal Court shall, as from the appointed day, be the Federal Court of India and shall accordingly be deemed to have been duly constituted, as such, in accordance with the provisions contained in that behalf in the Government of India Act, 1936, as it applies in relation to India on and alter that day.'

5. 'India' in this order, means 'The Dominion of India'. This paragraph of the Order settles the constitution and status of the Federal Court. For the purpose of determination of its jurisdiction--local, personal and in relation to questions, in dispute, between the parties--it shall have to be borne in mind that the 'Order' may have the same extra-territorial application as a law of the Dominion Legislature--(see Section 9 (4) (c), Independence Act). Paragraph 1 of the Instruments of Accession, executed by the Rulers of the concerned States, provide that the Federal Court shall have jurisdiction over the States in respect of such functions as may be vested in it by on under the Government of India Act, 1935, as in force in the Dominion of India on 15th day of August 1947. Extension of this jurisdiction until the States are included in the Indian Dominion is extra-territorial. There are no terms in the Instruments that would detract from this jurisdiction.

6. The Dominion of India, according to Section 5, Constitution Act, is 'the Dominion of India established by the Indian Independence Act, 1947' and it

'shall, as from 15th August 1947, be an Union comprising

(a) the Provinces hereinafter called Governors' Provinces;

(b) the Provinces hereinafter called Chief Commissioners' Provinces ;

(c) the Indian States acceding to the Dominion in the manner hereinafter provided ; and

(d) any other areas that ma; with the consent of the Dominion be included in the Dominion.'

7. There is hardly any dispute that the concerned States were, until the date of agreements providing for cession of full and exclusive authority, jurisdiction and power for and in relation to the governance of the concerned States and for transfer of their administration to the Dominion Government, by the respective Rulers, acceding States and, as such, within the Dominion of India within the meaning of the section. If it be held that there has been a complete cession of territory by virtue of that agreement, the concerned States shall be the parts of Indian Dominion in the category of Section 6 (1) (d) of the Act. It is also a question for serious consideration, whether yielding up of all attributes of sovereignty by the Rulers over the areas, in question, so as to leave nothing more than the bare nominal or dormant sovereignty in himself would amount to inclusion of the area in the Dominion for the purposes of exercise of such jurisdictions as are ceded, particularly for the purpose of jurisdiction relating to administration of justice including establishments of Courts. My answer to this is in the affirmative for such reasons as I have already given in my main judgment. At any rate, as parts of acceding States, they are within the Dominion.

8. The Federal Court, according to the Constitution Act (hereinafter called the Act), has two kinds of jurisdictions : (i) Original and (ii) Appellate. The jurisdiction can also be divided into Civil and Criminal. We are concerned with its appellate jurisdiction in matters criminal. We have, therefore, nothing to do with the Federal Courts Enlargement of Jurisdiction Act (Act I [1] of 1948). It is to be noted, however, that the latter Act is limited in its operation to judgments of a High Court, as defined in Chapter II Part IX, of the Act. This limitation has no application to its criminal appellate jurisdiction. By contrast, however, it indicates that in matters of criminal appellate jurisdiction, the words High Court' has wider or at any rate different signification.

9. The matters in respect of which right of appeal exists has been specified in Section 205 of the Act, The Sub-section (i) of the section only is material for our purpose. It reads ;

'An appeal shall Ho to the Federal Court from any judgment, decree or final order of a High Court, if the High Court certifies that the case involves a substantial question of law as to the interpretation of this Act or any Order in Council made thereunder before the date of the establishment of the Dominion or any order made thereunder on or after the date, or as to the interpretation of the Indian Independence Act, 1947, or of any order made thereunder, and it shall be the duty of every High Court to consider in every case whether of not any such question is involved and of is own motion to give or to withhold a certificate accordingly.'

10. There can be no serious controversy that this appellate jurisdiction is restricted in its operation to (i) any judgment, decree or final order of a High Court; (ii) arising out of cases that must involve a substantial question of law as to the interpretation of the Act or any Order in Council or any order made thereunder either before or after the date of establishment of the Dominion ; and (iii) or interpretation of Indian Independence Act or of any order made there, under. There is no dispute that the cases disposed of by our order, sought to be appealed against, to involve such questions, as (ii) & (iii) above. The only other question for consideration is if the Orissa High Court in exercise of its extended jurisdiction under para. 5 of the Administration of Orissa States Order is a High Court within the meaning of Section 205 of the Act. Before proceeding to consider this question, I shall advert to the difference in language between Section 205, as adapted, and the section, before adaptation, in relation to 'High Court'. Before, it was '............. of a High Court in British India'. Now it is only High Court. I shall deal with the intent and meaning of this change presently.

11. The only controversy, as I have already said, centres round the question whether 'High Court of Orissa' functioning as a High Court in or in relation to the aforesaid area is a High Court within the meaning of the section. That it is not a High Court in acceding States is clear from the fact that it has not been declared such accordance with Section 217 of the Act in relation to provisions contained in Section 207 nor has it been established in or for an acceding State, as such. The question that still remains for consideration is if it is a High Court for any part of the Indian Dominion in exercise of its jurisdiction as extended by the Administration of Orissa States Order. Reference in this connexion may be made to para. 5 (a) of the said order, which reads:

'The High Court for the time being exercising jurisdiction in the province of Orissa shall, so far as circumstances admit, exercise the same jurisdiction in all Orissa States and shall have the same powers and functions in such States. Any reference to the 'High Court' in the laws applied or continued in force under para. 4 shall be construed as a reference to the High Court for the time being exercising jurisdiction in the Province of Orissa'.

12. According to this paragraph read with the Schedule attached to the order enumerating the laws applied to the States, the Codes of Criminal Procedure is one of such laws. The Orissa High Court, in the instant case, is a High Court within the meaning of the Criminal Procedure Code, as extended in its application to those areas. The words 'High Court' has been defined both generally and specifically. The general definition is contained in Section 311 of the Act. The relevant portion of the section reads,

'In this Act, unless the context otherwise requires, 'High Court' does not, except where it is expressly so provided, include a 'High Court' in an acceding State'.

13. The more limited definition of 'High Court' is contained in Section 219 of the Act. That definition is applicable in relation to India. 'India' in Section 219 means 'Governors' Provinces and Chief Commissioners' Provinces' but does not include 'any acceding States'. I shall re-advert to the difference of language in Section 205, as adapted. Ordinarily, we should expect 'High Court in British India' to be replaced by 'High Court in India'. If it were so, then only the section would refer exclusively to 'High Courts' in Governors' and Chief Commissioners' Provinces as it is sought to be contended. Prima facie, therefore, 'High Court' in the section must have a wider signification though it would, under all circumstances, exclude High Court in acceding State in view of definition of Section 311 of the Act already referred to. In this context of how the word has been denned, there are conceived three classes of High Court in the Act, namely, (i) High Court in relation to Governors' and Chief Commissioners' Provinces; (ii) High Court in acceding States; and (iii) High Court in or in relation to any other areas within the Dominion and constituted otherwise than High Courts in relation to India and acceding States. My conclusion is that a High Court of class (iii) above is certainly a High Court within the meaning of Section 205 of the Act. I see no reason why Orissa High Court, as such, in its 'extra-provincial jurisdiction, would not belong to this class and be deemed a High Court within the meaning of Section 205. The High Court of Orissa in exercise of its extended jurisdiction may be conceived of in two different ways, namely, either High Court in India with extraterritorial jurisdiction or High Court for the States area that is any other area referred to above. Neither of these connotations can be ruled out as inappropriate or incorrect.

14. In Section 219, the definition of the words 'High Court' is not subjected to any jurisdictional limitation. It has reference to the mode of its constitution with reference to the constituting authority. There is hardly any guarantee for the contention that the High Court constituted in India exercising extra-territorial jurisdiction will not be a High Court within the meaning of Section 219 Or Of Section 205.

15. Conceived in this aspect, it will attract the principles laid down in the case of National Telephone Co. v. Postmaster General No. 2, 1913 A. C. 546 at p. 562 :; (82 L. J. K. B. 1197) namely,

'When a question is stated to be referred to an established Court without mote, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach',

I shall here advert to the language employed in a. 4, Sub-section (ii) (c), Extra-Provincial Jurisdiction Act for determining the Court by whom the jurisdiction is to be exercised. The section reads :

'The Central Government may make such order as may seem to it expedient for determining the Court by whom and for regulating the manner in which any jurisdiction consequential on the jurisdiction under the Act is to be exercised within any Province.'

16. The language underlined (here italicised) imports that the added jurisdiction is to be judged in the light of jurisdiction in or in relation to the Province. In this view, the objection to the applicability of the doctrine laid down in the National Telephone Co.'s case, (1913 A. C. 546: 82 L. J. K. B. 1197) based on difference of area noticed by my learned brother, Narasimham J. will disappear. It may also be stated in this connexion that the applicability of the doctrine bas no intimate relation with the right of appeal conferred on a subject being either general or special. In this part of my judgment, I am assuming that the area is not included in Indian Dominion nor in the Province of Orissa. The jurisdiction is personal being extra-territorial. We had examples of such jurisdiction of British Indian Courts in Native States. The subject is dealt with in Chap. 5 of Illbert's Government of India from which I have made copious references in my main judgment in the case. The Merchant Shipping Act, 1894. The Slave Trade Act, 1876 (39 & 40 Vict. C. 46) afford instances of vesting Courts with extra-territorial jurisdiction. Exercise of such jurisdiction will not make the Court immune from such superintendence to which it is subject by its very constitution. Section 205 of the Act must be read as part of the constitution of 'High Court' referred to therein in relation to its functions and duties. In bestowing the extra-provincial jurisdiction upon this Court, the Administration of Orissa States Order--para. 5 (a) ordains that the 'High Court' shall exercise the same jurisdiction and shall have the same powers and functions as in Orissa Province. According to Section 205 of the Act, it is one of the duties of the High Court to consider whether certificate for leave should be granted. Thisfunction of the Court stands out from what maybe conceded of 'as a right of appeal of a subjectfrom the Court's judgment'. In exercising ourcriminal jurisdiction, extra-provincially, as provided in Criminal Procedure Code which isextended and applied to the States, we are placedunder the same functional obligation as in exercise of similar jurisdiction in the Province,provided the Federal Court has jurisdiction inor in relation to the areas, in question. I haveheld before, for reasons recorded that the FederalCourt has jurisdiction over or in relation to theareas.

17. Strictly speaking, however, in exercise of its extra territorial jurisdiction, in relation to matters in respect of which the concerned States have not acceded by the Instruments of Accession, it is a High Court in or in relation to an area within the Indian Dominion but not having any reference to the affairs of India or of acceding States. In the absence of something compelling to force me to hold otherwise, I cannot come to any other conclusion.

18. In the context of events already dealt with in the judgment, one particular area may form a State acceding to the Dominion in the manner provided in Section 6 of the Act, and at the same time it may be viewed as an area included in the Dominion with the consent of the Dominion for the purpose of certain jurisdiction other than those included in the Instrument of Accession. The Court's jurisdiction, as such, in reference to a territory relates to the persons resident in and oases arising out of a territory. Orissa High Court, therefore, is certainly a High Court for the area in the sense of its possession of jurisdiction in relation to the persons resident of and cases arising in that area under the laws extended and applied over there.

19. In reference to these areas, it can be predicated with any amount of certainty that they have united with the Indian Union for the purposes of their governance, however qualified the Union may be from the Rulers point of view of his nominal and dormant sovereignty still existing or not. Defnition of Indian Union in Section 5 has to be understood in terms of one united sovereignty for the purpose of internal governance and administration and in terms of the Law of Nations for the purpose of international membership but not in terms of ownership of territories as private properties Considered in this light, my conclusion is that the areas concerned are areas united with Indian Dominion and form a part thereof.

20. The simple position deducible is that the Orissa High Court in exercising the extra-territorial jurisdiction within the province in terms of Section 4 (c), Extra-Provincial Jurisdiction Act has an added jurisdiction to an established Court as contemplated in National Telephone Co.'s case, 1913 A. C. 546 : (82 L. J. K. B. 1197) and is subject to the appellate jurisdiction of the Federal Court. Alternatively, it is a duly constituted High Court in or in relation to an area inside the Indian Dominion over the whole of which the Federal Court had got (judicial) jurisdiction. Any High Court exercising such jurisdiction is in relation to its judgment, decree or final order fulfilling the conditions laid down in Section 205 of the Act is subject to its appellate jurisdiction.

21. The main, if not sole, objection to the view, that I have taken, consists in that the Government of Indian Act, taken as whole, does not contemplate governance of areas other than Governors' or Chief Commissioners' Provinces and acceding States. It is pointed out, in this connexion, that any area, included within the Indian Dominion by consent, must be either included within any one of the aforesaid territories or be constituted into a Unit by itself. This is based upon the circumstances that there is no provision in the Constitution Act for any machinery for government of any such area. In this view, it tantamounts to say that the language, employed in the Act, must, have assigned to it only such meaning as it was capable of at the time when the Government of India Act was passed. That is to say, the Constitution is sought to be interpreted in accordance with the general rule governing statutory interpretation, namely, that a statute has to be read as having fixed meaning speaking from the date of its enactment. This contention overlooks the fact that the Constitution is not a mere casual piece of legislation but an instrument of Government intended to last for all time. True, the rule of construction of the Constitution that it must be interpreted by reference to the meaning is undoubted, but this does not involve the consequence that they are to be read as comprehending only such manifestation of the subject matters, named, as were known to the framers. On the contrary, the Constitution can be and is construed to include such new specific development of particular matters as may arise from time to time. In applying this mode of construction, the meaning of the terms of the Constitution does not undergo any change, but it is made conformable to the progress of the Society side by side with human civilisation. The terms of the Constitution should not be construed in the light of the meaning which they bore when the Constitution came into being, but should be given broader construction from time to time in order to include new circumstances arising with the progress of history.

22. Another aspect that stands out as one ofgreat consequence is that it is customary thatin all Federal Constitutions, there is always aprovision for a Court of whom the essentialfunction and duty is to adjudicate upon theconstitutional competence of any Federal orState Act or any other Governmental measureswhenever any such falls for decision; every pre.caution is taken in the Constitution Act beensure this jurisdiction of the Federal Court.The position is illustrated by the Constitution ofAustralian Commonwealth:

'The High Court alone can finally determine in Australia questions of interpretation of the CommonwealthConstitution, subject to the exception mentioned hereafter. In one respect the position of the High Court isdifferent from that of any other Dominion Court; noappeal is permitted from it to the Privy Council, 'uponany decision howsoever arising as to the limits inter seof the constitutional powers of Commonwealth and thoseof an; State or States or as to the limits inter se of theconstitutional powers of any two or more States, unlessthe High Court shall certify that the question is onewhich ought to be determined by His Majesty in Council' such certificate may be granted 'for any specialreason'. The obvious object of this provision was tomake the High Court the sole interpreter of the Constitution, and a consequence is that the High Courtla not bound to follow the decision of the Privy Councilapart any such constitutional questions as to the limitsinter se.'

23. Section 205, Government of India Act, has similar object in view. Acceding States apart, every other Court within the geographical and jurisdictional ambits of the Indian Dominion must be in its adjudication of constitutional question subject to the appellate jurisdiction of the Federal Court.

24. Another objection, according to the contrary view, is that the 'High Court', as under, stood in my judgment, cannot be made to fit in With Sections 40, 66, 206, 228, 242, 253, 254, 255 and 303 of the Act. To me, it looks like a logical short out but it is not sound. Most of those sections are in relation to Governor's or Chief Commissioners' Province and accordingly Section 219 of the Act shall govern the meaning. With regard to others as in relation to the general view of the question as a whole, I should apply the doctrine of 'generic interpretation' which asserts no more than that new developments of the same subject and new means of executing an unchanging power do arise from time to time and are capable of control and exercise by the appropriate organ to which the power has been committed. In other words, while the power remains the same, its extent and ambit may grow with the progress of history. The question whether a novel development is or is not included in the terms of the Constitution finds its solution in the application of the above doctrine. This principle is also known as 'progressive interpretation'. By this the meaning of the terms of a Constitution does not undergo a change, for the nature of a grant of a power remains the same. Consistently with the genius of common law a constitutional system, based upon English Jurisprudence, must be adapted by application of the aforesaid doctrine to the development of every day life. In the background of the Dominion Government of India of to-day, as a Federal State, it is a real State side by side with its member States and its organs have a direct power over the citizens of those member States.

25. In this connexion, it would not be a diversion to refer to some case law illustrating how the terms used in a constitution document should be adapted so as to embrace subjects, though different in various of its aspects, but being of the same nature or belonging to the same category as the subject of grant of power. In the Australian Constitution, in Section 51 (v), the power of legislation of the Commonwealth Parliament extended to 'Postal, Telegraphic, Telephonic and other like services'. At the time when the Constitution was framed, the extent to which the radio broadcasting has developed in recent years was obviously not in contemplation of the framers. The question arose whether 'wireless telegraphy' or 'broadcasting' shall be deemed to be included within the term 'service'. The Court found that in applying the ordinary rules of interpretation based upon 'fixed meanings' of the word the matter would depend upon a greater variety of considerations but having regard to the nature of 'broadcasting' itself and the meaning of the word ''service' in the Constitution, it must be remembered that not only the sending but also of reception of messages of this kind must be included in its 'service' for as pointed out by the Privy Council in the Canadian Broadcasting Case, 1931 A. C. 304, it would not be practicable to separate the receiving from the transmitting apparatus both being essential parts of integral unit The Court, in solving the problem, observed : 'It is clear that from the nature of the case the whole power in respect of 'wireless telegraphy' must be vested in either the Commonwealth or the States, for divided control would be impossible in respect of receiving apparatus. It follows that that the doctrine under review (i. e., generic interpretation) might not be successfully invoked to support the exercise of a power which involves control over matters having a far wider extension than it is comprehended by the terms of the grant bat in every case the inherent nature of the subject-matter ..... must be fully considered in relation to the subject of enactment.'

26. To quote the words of Isaacs J. in Hardinge v. Federal Commissioner of Taxation, 23 Com. L. R. 119 at p. 132, there is a marked conceptional distinction between 'two aspects of the same thing or two different things in the same aspect'. In my view, the High Court of Orissa functioning for the Province of Orissa and functioning in relation to the extra-territorial jurisdiction of the Province of Orissa are not two different things but constitute two aspects of the same thing. Exercise of such jurisdiction by the High Court of Orissa is not outside its constitution (Vide last paragraph of the Order). It follows, therefore, that in exercise of such added jurisdiction conferred upon by an appropriate authority if; does not become constitution, ally a different Court.

27. If I have not been able to concur with my learned brothers, it is for the reasons, summarised below:

(i) I could not otherwise explain the intendment of the legislative difference between the meanings of the words 'High Court' as specified in Sections 219 and 311, Constitution Act, particularly that the words 'in relation to India' occurring in Section 219, do not further restrict the meaning of 'High Court', in Section 311, for the limited purpose of the affairs of Governors' and Chief Commissioners' Provinces.

(ii) Neither could I reconcile myself to the position that the Federal Court Order 1947 (an Order having extra-territorial application as much as laws of Dominion Legislature in India) lacks jurisdiction over, or, in relation to, any area within the geographical and Governmental ambits of the Indian Union, irrespective of any such area, having been included or not in the Dominion, in the sense of its being either a Governor's or a Chief Commissioner's Province or of an acceding State, as such, that is, in respect of subjects or power acceded, however much the nature and character of its jurisdiction may continue the same as before.

(iii) Neither could I understand that 'an area' has any distinctive political existence apart from 'a State' in which all elements of sovereignty,' all powers and jurisdiction of governance and administration are vested nor that the jurisdiction, exercised in the area, in question, does not constitute a different aspect of the Province of Orissa, as one of the member States of the Union of Indian Dominion.

(iv) Nor could I comprehend that 'the same functions', assigned to the Orissa High Court, in relation to the said area, in respect of the laws applied to them under para. 5 of the Administration of the Orissa State Order, 1918 should not be inclusive of, or the same as, the function assigned to the Orissa High Court like any other High Courts of India under Section 205 of the Act, namely,

'it shall be the duty of every High Court to consider in every case whether or not any such question is involved of its own motion to give or to withhold a certificate accordingly,' in administering the self-same laws in the Province of Orissa.

(v) Likewise, I could not conciliate to the view that the exercise of jurisdiction or powers and functions of the Orissa High Court in the States, though exercised within the Province of Orissa according to the Extra-Provincial Jurisdiction Act, did not constitute one of the two aspects of the said High Court, but constituted it an altogether different Court and that, if the former, it will not feed the conception underlying Section 206 of the Act that all constitutional problems shall have their final arbitrament in the Federal Court (Privy Council apart) except in regard to acceding States in relation to the subject-matter of accession.

28. In my judgment, therefore, certificate should be granted to the petitioners for the purpose of an appeal to the Federal Court. But the majority view being to the contrary, the order of the Court would be to withhold the certificate accordingly.

Das, J.

29. I have had the benefit of reading the judgments of my Lord the Chief Justice and Narasimham J. In view of their differing opinions I have considered the matter, assisted by their judgments with anxiety. The question for decision is a difficult one and since I have come to my conclusion after considerable hesitation, I consider it desirable to set out briefly my reasons for the same out of deference to both the learned Judges.

30. Under Section 205, Government of India Act, an appeal lies to the Federal Court from any judgment, decree or final order of a High Court, if the High Court certifies that the case involves a substantial question of law of the kinds specified therein. It is further provided that it shall be the duty of every High Court to consider in every case whether or not any such question is involved and of its own motion to give or to withhold a certificate accordingly. Since in this case we are agreed that questions of law of the kinds specified in the section are involved we can withhold the certificate only if we reach the compelling conclusion that the High Court dealing with this matter is not a High Court within the meaning of Section 205.

31. The jurisdiction of the High Court in dealing with this matter is derived from para. 5 of the Orissa States Administration Order. This, in effect, states that the High Court of Orissa shall exercise the same jurisdiction in all Orissa States as it exercises in the Province of Orissa and it also states that reference to a High Court in any of the laws applied to the States (including therein Section 435, Criminal P. C., under which we were invited to exercise our jurisdiction in this cage), shall be construed as a reference to the High Court of Orissa. The question that arises is whether the High Court, as so vested with jurisdiction, comes within the purview of Section 206. This involves a further question whether the effect of para. 5 of Administration of States Order is to be taken as constituting notionally a separate High Court or as vesting additional jurisdiction in the existing Orissa High Court. It is a matter on which I express no opinion. But it is clear that the High Court in this case is a High Court exercising jurisdiction outside the Province of Orissa and in an area which is not comprised in any other province of India. The meaning of the words 'High Court' for the purpose of the Government of India Act has been set out in Section 219, Government of India Act, and that meaning must apply also to the words 'High Court' in Section 205. In setting out the meaning of the words 'High Court' Sub-section (i) of that section states that certain specified High Courts, of which Orissa High Court must now be taken to be one, shall 'in relation to India' be deemed to be a High Court for the purpose of the Act and the word 'India' has been defined in Sub-section (3) of Section 219 as referring to the various provinces. What has given me considerable difficulty is the correct import of this phrase 'in relation to India' as used in this section. Can it be taken to include in its connotation a High Court which by its constitution is a High Court for one of the provinces of India, but by some arrangement exercises extra-provincial jurisdiction outside India as defined when acting in the exercise of such extra-provincial jurisdiction.

32. A close examination of the provisions of the Government of India Act makes me think that the High Court in the exercise of such extra-provincial jurisdiction cannot be brought in within the terms of the connotation given to it in Section 219. The scheme of the Government of India Act, clearly indicates that it contemplates and makes provision for only two classes of High Court--High Courts for and within the provinces and High Courts functioning for and within the acceding States and declared as such under Section 217, Government of India Act. There is no provision for a third category of High Courts exercising extra-provincial jurisdiction. A reference to the various, other sections in the Government of India Act, namely, Sections 40, 86, 206, 228, 242, 253, 254, 255 and 303 makes it difficult to fit in a High Court exercising extra-provincial jurisdiction into the frame work of the Government of India Act. It therefore seems to me that whatever may be the import of the phrase 'in relation to India,' it cannot be construed to have reference to a High Court when exercising extra-provincial jurisdiction. The situation is one which has not been envisaged by the Government of India Act as such and has not been specially provided for in the Orissa States Administration Order. It therefore seems to me that the words 'High Court' in Section 206 must refer only to the High Court of Orissa functioning with reference to its constitution for the province of Orissa and not with reference to its added extra-provincial jurisdiction. The case in National Telephone Co.'s case, 1913 A. C. 546: (82 L. J. K. B. 1197) cannot be of any help if the conclusion is reached, that Section 205 cannot apply to the High Court in the present case. If I had been able to persuade myself that irrespective of the connotation of the words 'High Court' in Section 205, the Federal Court is a Court with general jurisdiction over the entire Dominion of India including areas which have not yet been incorporated in to any other provinces and for which no High Court as in an acceding State is provided for by declaration under Section 217, I should have found myself able to support the right of appeal. But I am unable to feel convinced that whether the terms of the Federal Court Order, 1917, or the omission of the words 'British India' from Section 205, are sufficiently strong reasons for bringing about such a result which does not appear to have been contemplated in the Government of India Act as it stood before the Indian Independence Act. In the result therefore I am obliged with regret to come to the conclusion that no appeal lies to the Federal Court and that no certificate can issue. I agree also that there is no right of appeal in this case under Section 207.

Narasimham, J.

33. This is a petition for grant of a certificate under Sub-section (1) of Section 205, Government of India Act, 1935 (as adapted) with a view to enable the petitioners to file an appeal to the Federal Court against the judgment of this Court dated 9th September 1948 in Cri. Misc. cases Nos. 2, 3, 4 & 5 of 1948.

34. At the outset I may point out that the aforesaid cases involve a substantial question of law as to the interpretation of Sections 6 & 8, Government of India Act, and if it could be reasonably held that Section 205 of that Act is applicable, I would have no hesitation in granting the certificate asked for.

35. The Federal Court is a creation of the Statute and cannot claim any inherent jurisdiction over the High Courts of India. Therefore unless it can be held that the High Court of Orissa while exercising jurisdiction in the States of Bamra and Kalahandi (which or outside the territorial limits of the Province of Orissa) is a 'High Court' for the purposes of Section 206, Government of India Act, it will not be competent for that High Court to grant the certificate, nor will the Federal Court obtain jurisdiction to bear an appeal from the decision of that High Court. As pointed out by their Lordships of the Federal Court in Pashupati Bharti v. Secy. of State, A. I. R. (25) 1938 F. C. 1 : (I. L. R. (1939) Kar. F. C. 1) and reiterated in Lakhpat Ram v. Sehari Lal, A. I. R. (26) 1939 F. C. 42 : (I. L. R. (1939) Kar. 96) the nature of appellate jurisdiction of the Federal Court is strictly limited by Statute :

'A Court cannot by the exercise of its inherent powers extend its appellate jurisdiction or increase its revisional authority over other Courts ..... The relation between the Federal Court and the High Courts of British India bears no resemblance to the relation between the High Courts, and Courts subordinate to them.'

Therefore the observations of the Privy Council in Hemchand Devchand v. Azam Sakarlal Chhotam Lal, 1906 A. C. 212 at p. 238 regarding the right of a person aggrieved by an order of a Court administering justice on the King's behalf (whether that Court may exercise jurisdiction) to apply to the Privy Council to redress his wrong, will have no application to the present case. Mr. Misra, on behalf of the petitioners, frankly conceded that if his argument as regards the applicability of Section 205, Government of India Act, is not substainable, his petition fox grant of a certificate must necessarily fail.

36. The High Court of Orissa was constituted by the Governor-General by the Orissa High Court Order, 1948, which is an Order made under Section 229, Government of India Act. The Para. 1 of Article 3 of that Order make it clear that the jurisdiction of the High Court of Orissa is limited to the areas known as 'the Province of Orissa', which expression means the districts of Cuttack (including Angul), Puri, Balosore, Ganjam, Koraput and Sambalpur which were constituted as a separate Province by the Government of India (Constitution of Orissa) Order and such areas as may be added to the Province by an order of the Governor-General under Section 290, Government of India Act--see the Orissa (Enlargement of Area and Alteration of Boundaries) Order, 1918. It is thus abundantly clear that the jurisdiction of the High Court of Orissa as constituted under Section 229, Government of India Act does not extend to the areas which are outside the Province of Orissa.

37. Soon after the execution of the agreement between the Rulers of Orissa States and the Dominion Government on and after 14th December 1947, the Dominion Government delegated their powers of administration of the said States to the Government of Orissa under the provisions of the Extra-Provincial Jurisdiction Act. The Government of Orissa (as the delegated authority) made an order known as the Administration of Orissa States Order, 1948 (hereinafter referred to as the States Order) in exercise of the powers conferred by Section 4, Extra-Provincial Jurisdiction Act. In exercise of the powers conferred by Clause (a) of Sub-section (2) of Section 4 of that Act the Provincial Government determined the law and the procedure in the States and this will be found in Para. 4 of the States Order. Similarly in exercise of the powers conferred by Section 4 of that Act the Provincial Government determined the Court which shall exercise the powers of a High Court in the said States. This will be found in para. 6 of the States Order which says that the High Court exercising jurisdiction in the Province of Orissa shall, so far as circumstances admit, exercise the same jurisdiction and shall have the same powers and functions in Orissa States. From 1st January 1948 till the date of the Constitution of the High Court of Orissa in July 1948, the High Court of Patna exercised jurisdiction in the Province of Orissa and by virtue of the said paragraph of the States Order that High Court exercised jurisdiction on Orissa States also. But from 26th July 1948 the High Court of Orissa began to function in the Province of Orissa by virtue of the Orissa High Court Order, 1948 and from that date it began to exercise jurisdiction in Orissa States also by virtue of Para. 5 of the States Order. That High Court while exercising such powers and functions gave its judgment in Cri. Misc. cases Nos. 2, 3, 4 and 5 of 1948, which arose out of certain proceedings pending in the Courts of the Magistrates in Bamra and Kalahandi which are two of the Orissa States.

38. The main question for decision is whether an appeal will lie to the Federal Court against the judgment of the High Court of Orissa while exercising jurisdiction in any Orissa State by virtue of para. 5 of the States Order, The answer to this question will obviously depend on the interpretation of the expression 'High Court' occurring in Sub-section (1) of Section 205, Government of India Act. In the interpretation clause to that Act (Section 311 (2)) the said expression has been defined as follows:

''High Court' does not, except where it is expressly so provided include a High Court in an Acceding State.'

The expression 'Acceding State' has been defined in Sub-section (5) of Section 6 of that Act and Bamra and Kalahandi are also Acceding States because the Rulers of those States signed the Instruments of Accession in August 1947. The fact that in December 1947, they surrendered full and exclusive authority and jurisdiction in the said States to the Dominion Government will not in any way remove them from the class of 'Acceding States' inasmuch as the instruments of Accession still subsist and they have not been superseded by the December agreement. Therefore, if the definition of the expression 'High Court', as given in the Section 311 (2), is applied, it would appear that in Section 205 the expression 'High Court' means the High Court exercising jurisdiction in any of the Provinces of India as distinct from a High Court exercising jurisdiction in any of the Acceding States.

89. Sub-section (1) of Section 219, Government of India Act enumerates various High Courts which for the purposes of the Government of India Act and in relation to 'India' shall be deemed to be High Courts. Though the High Court of Orissa is not specified in that sub-section it should be deemed to have been included in it from the date of its Constitution under Section 229 (vide the proviso to that sub-section). The expression ''India' occurring in Chap. 2 of Part 9, Government of India Act (in which Section 229 is found) had been given & restricted interpretation in Sub-section (3) of Section 219. That is to say, for the purposes of that chapter 'India' means only the Governors' Provinces and Chief Commissioners' Provinces and does not include an Acceding State. Therefore, the combined effect of Sub-sections (1) and (3) of Section 219 when read along with the provisions of the Orissa High Court Order is that in relation to the Governors' Provinces and Chief Commissioners' Provinces, the High Court of Orissa shall for the purposes of the Government of India Act be deemed to be a High Court. Even if the widest possible meaning is given to the words 'in relation to' there can be no doubt that in the context, those words mean 'in respect of any matter relatable to.' That is to say, any case that comes up for decision before those High Courts must be relatable to the Provinces of India as distinct from areas which lie outside the Provinces of India. So far as the High Court of Orissa is concerned, the effect of Section 219 is that in whatever provision of the Government of India Act the expression 'High Court' may occur, that expression should be construed as referring to the High Court of Orissa while exercising jurisdiction in respect of matters arising out of the Province of Orissa. When such High Court is exercising jurisdiction in any of the Orissa States it is not a 'High Court' for the purposes of the Government of India Act.

40. My Lord the Chief Justice seems to take the view that the meaning of the expression 'High Court' as given in Section 311 is wider than the meaning given to that expression in Section 219. With great respect I find myself unable to agree with this view. The definitions of the said expression in Sections 311 and 219 are mutually complementary and one is no more restrictive than the others. While the former section says what are not High Courts, the latter section says what are High Courts for the purposes of the Act. Doubtless in Section 219 and the subsequent sections which occur in Chap. 3 of Part 9 the expression 'India' has been given a restricted meaning. But the meaning given to 'High Court' is made applicable to all the provisions in the Government of India Act wherever that expression may occur. This seems to be the significance of the words 'for the purposes of the Act' occurring in Sub-section (1) of Section 219. A scrutiny of the various provisions of the Government of India Act where the expression 'High Court' occurs (Sections 40, 86, 200(3), 205, 206, 207, 210, 211, 217, 218, 219, 231, 242(4), 263, 264, 255 and 303) shows clearly that the following three classes of High Courts alone were contemplated under that Act. (i) High Courts in Governors' Provinces (ii) High Courts in Chief Commissioners' Provinces ; and (iii) High Courts in Acceding States. So far as the Federal Court was concerned, appellate jurisdiction was conferred over all those High Courts. But Sections 205 and 206 refer to its appellate powers over the High Courts of the Provinces whereas Sections 207, 211 and 217 refer to its powers over the High Courts in Acceding States. Section 218 has no direct bearing on the subject under discussion in as much as that refers to a High Court exercising appellate jurisdiction from a Court outside the Dominion of India. The States of Bamra and Kalahandi are within the Dominion of India and consequently Section 218 has no application. There is thus no provision in the whole of Chap, 1 of Part 9 conferring on the Federal Court appellate jurisdiction over a High Court while exercising jurisdiction under an order made under Extra Provincial Jurisdiction Act in an acceding State.

41. This leads to the next question as to whether the High Court of Orissa while exercising jurisdiction in the States of Bamra and Kalahandi can be said to be a High Court in an Acceding State so as to attract the appellate jurisdiction of the Federal Court under Section 207. There is no doubt that the States of Bamra and Kalahandi are Acceding States as described in Section 6 (6) because the Rules executed the Instruments of Accession in August 1947 and those Instruments still subside notwithstanding the subsequent surrender of jurisdiction by those Rulers to the Dominion Government in December 1947. But there is no declaration by the Governor-General as required by Section 217 and consequently for the purposes of Section 207 this High Court cannot be considered to be a High Court in an Acceding State.

42. A study of the relevant provisions of the Government of India Act prior to the adaptations made by the India (Provisional Constitution) Order, 1947, will lead to the same result. In the unadapted Section 205, the High Court was expressly referred to as 'High Court in British India'. Similarly in the old Section 219 the words 'High Courts in British India' were found. There was thus no doubt that the High Court over which the Federal Court exercised appellate jurisdiction under Section 205 was a High Court as described in Section 219. At the time of making the adaptations the words 'British India' were omitted in both Sections 305 and 219. But nothing was substituted in their place in Section 205 whereas in 219 the expression 'India' was substituted and a new Sub-section (3) was inserted giving a restricted meaning to the expression 'India' as referring to Governors' Provinces and Chief Commissioners' Provinces. The restricted definition of the expression 'India' in Sub-section (3) of Section 219 (as adapted) refers to no other territories except those which were formerly known as 'British India.' How can it be said that in consequence of these adaptations the jurisdiction of the Federal Court under Section 205 has been enlarged so as to include appellate jurisdiction over High Courts functioning in areas outside the Provinces The adaptations were made with a view to bring the provisions of the Government of India Act in conformity with the provisions of the Indian Independence Act. No adapting authority while exercising the limited powers of adaptation could widen the jurisdiction of the Federal Court. In the Federal Court Order, 1947, also no wider jurisdiction is given to the Federal Court under Section 205. But on the contrary from a scrutiny of para. 4 (1) of that Order it is clear that the provisions in the Government of India Act, 1935 (as adapted) would continue to apply. Thus neither the India (Provisional Constitution) Order, 1947, nor the Federal Court Order, 1947, widened the scope of the jurisdiction of the Federal Court under Section 205 and such jurisdiction now remains the same as it was before the passing of the Indian Independence Act.

43. For the purpose of this appeal, it is unnecessary to consider the effect of Federal Court (Enlargement of Jurisdiction) Act 1947, because that Act is restricted to civil cases only. But in Section 2 (a) of that Act, the expression 'High Court' has been defined with reference to Section 219, Government of India Act. That Act was made by the Dominion Legislature in exercise of the powers conferred by Section 206, Government of India Act. Apparently, the Legislature desired that the definition of the expression 'High Court' in the Federal Court (Enlargement of Jurisdiction) Act, 1947, should be in conformity with the meaning given to that expression in Section 206, Government of India Act so that the appellate jurisdiction conferred by that Act may be exercisable by the Federal Court over all classes of High Courts contemplated by Section 206. Therefore the conclusion is inescapable that in Section 206, Government of India Act also the High Court that is referred to is the High Court as described, in Section 219. For obvious reasons the same meaning should be given to the expression 'High Court' in Sections 205 and 206. There seems to be thus no doubt that in Section 205 also the High Court that is referred to is the High Court as described in Section 219.

44. For some reason or other, while constituting the Courts for Orissa States, the competent authority did not choose to confer on the Federal Court appellate jurisdiction over the High Court similar to that conferred by Section 205, Government of India Act. If it is desired by the Dominion Government (or their delegated authority) that the Federal Court should have appellate jurisdiction over the High Court of Orissa while exercising jurisdiction in Orissa States there is nothing to prevent them from making an appropriate order to that effect under Section 4, Extra-Provincial Jurisdiction Act.

45. Though in para. 5 of the States Order the Provincial Government have made every effort to equate the powers and functions of the High Court of Orissa in relation to the Province of Orissa and in relation to the Orissa States, it is obvious that the two powers and functions cannot be identical. The source from which the jurisdiction of the High Court in the two areas is derived is different. The laws which the said High Court has to interpret and administer in the two areas are also different. This is the main reason why the expression 'so far as circumstances admit' has been deliberately inserted in sub-para. (a) of para. 5 of the States Order. This will be clear from the following illustrations.

(i) The Indian Bar Councils Act, 1926, is in force in the Province of Orissa and the High Court of Orissa while exercising jurisdiction in the Province has certain powers under that Act. But that Act has not yet been applied to any Orissa State and consequently the High Court of Orissa will have no powers under that Act in any Orissa State.

(ii) Some of the statutory laws made by the Rulers in Orissa States have been preserved by sub-para. (b) of para 4 of the States Order. It may be that in some of those Statutes specified powers have been conferred on a High Court. Those powers will now vest in the High Court of Orissa by virtue of para. 5 of the States Order. But those powers will not vest in that High Court while exercising its powers and functions in the provinces of Orissa because those Statutes are not in force in the Province.

(iii) Any fee or other money received by the High Court while exercising jurisdiction in the Province will become part of the revenues of the Province under Section 228, Government of India Act and will be subject to the vote of the Orissa Legislative Assembly. But any fee or money realised by the said High Court while exercising jurisdiction in the States will not form part of the revenues of the Province and the Orissa Legislative Assembly as such will have no control over the same.

46. The above illustrations are given is show that though there is only one High Court exercising jurisdiction both in the Province of Orissa and in Orissa States, it performs dual functions derived from two different sources and that though both the functions are very similar there is a fine but real distinction in the exercise of those functions.

47. I may now refer to National Telephone Co. v. Post Master-General No. 2, 1913 A. C. 546 at p. 552 : (82 L. J. K. B. 1197) on which some reliance has been placed by the learned advocate for the petitioners. In this case it was observed by Viscount Haldane L. C.:

'When a question is stated to be referred to an established Court and without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general Tight of appeal from its decisions likewise attaches.'

On the basis of this decision, it was argued that when the jurisdiction of the High Court of Orissa was extended to Orissa States by para. 5 of the States Order without any express provision in that Order taking away the appellate jurisdiction of the Federal Court, the right of appeal under Section 205, Government of India Act which attaches to the decisions of the High Court of Orissa in relation to the Province of Orissa likewise attaches. The answer to this argument is that the principle of the aforesaid decision would apply if the additional powers that were conferred on the Court were not relatable to matters arising from an area outside the territorial limits of jurisdiction of that Court. For instance, at present even in the Province of Orissa the nature of the jurisdiction of the High Court is not uniform. In the agency tracts of Ganjam and Koraput, where the Civil Procedure Code does not apply, the powers of the High Court are very much restricted. But those areas form part of the Province and if in future the Civil Procedure Code is extended to those areas the High Court of Orissa will get additional powers and applying the principle of aforesaid decision it may be held that the appellate jurisdiction of the Federal Court likewise attached.

48. I would, therefore, reject the petition for the grant of a certificate under Section 205, Government of India Act (as adapted).


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