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The State of Orissa Vs. Iswar Das and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberGovt. Appeal No. 15 of 1959
Judge
Reported inAIR1960Ori180; 1960CriLJ1355
ActsEvidence Act, 1872 - Sections 114; Indian Metalliferous Mines Regulation, 1926 - Sections 3(1); Constitution of India - Article 20; General Caluses Act - Sections 24
AppellantThe State of Orissa
Respondentiswar Das and anr.
Appellant AdvocateGovernment Adv.
Respondent AdvocateSudam Ch. Sahu and ;V. Pashayet, Advs.
DispositionAppeal allowed
Cases ReferredRam Rattan Seth v. State
Excerpt:
.....pat 378. the learned judges of the patna high court took the view that although the indian coal mines regulations of 1926 were framed under section 29 of the indian mines act, 1923, it survived after the repeal of that act under section 88 of the mines act, 1952. the language of section 24 of the general clauses act clearly shows that it is intended to apply to all refutations whether they are rules and regulations simpliciter or whether they are rules and regulations which shall have effect as if enacted under this act. accordingly, the view taken by the learned magistrate is clearly wrong. in the result, the respondents in view of the indian metalliferous mines regulations, 1926, being the law in force, are clearly guilty, and as such they are convicted under section 66 of the mines..........empowered to frame rules and regulations under section 58(n) and section 57(t) respectively. the mines rules 1955 were framed under section 58 of the 1952 act. no regulations as contemplated under section 57(t) have been promulgated yet hence the question is whether under section 24 of the general clauses act, the indian metalliferous mines regulation 1926, is or is not still operative for purposes of prosecution, in short, the simple question is whether the indian metalliferous regulation, 1926, is still the law in force under article 20 of the constitution, which lays down that no person shall be convicted for any offence except for violation of the law in force at the time of the commission of the act.8. section 24 of the general clauses act (act x of 1897) lays down;'where any.....
Judgment:

G.C. Das, J.

1. This appeal by the State of Orissa was directed against an order of acquittal of the respondents recorded by Mr. L. N. Panda, Magistrate 1st Class, Baripada. The facts leading up to this prosecution are rather simple. Messrs. S. Lal and Company have an Iron Ore Mines at Kotuput in the district of Mayurbhanj. The respondents Iswar Das and A. C. Adhikari were the agent and manager respectively of the said Company, Under Clause (i) of Section 3 of the Indian Metalliferous Mines Regulation, 1926, the owner, agent, or manager of a mine is to forward the annual return in respect of the preceding year to the District Magistrate and to the Chief Inspector of Mines. The return for the year 1957 not having been filed by the due date 21-1-58, the Chief Inspector of Mines, Dhanbad, issued a reminder on 8-4-58 for the filing of the annual return and gave 14 days' further time for the same. In spite of the reminder the return was not filed and a prosecution report was submitted by the Chief Inspector of Mines, Dhanbad, on 18-7-58 under Section 66 of the Indian Mines Act (Act 35 of 1952). The Additional District Magistrate Baripada took cognizance on 30-7-58 and thereafter the case was transferred to the file of Mr. Panda. The only defence of the respondents was that the returns were filed in time.

2. Prosecution examined the only witness, Tarapada Ghatak, the statistical clerk and the respondents examined none. In fact, they did nothing except asserting that the annual return had been filed during the second week of January, 1958.

3. The Magistrate found the respondents not guilty both on fact as well as in law. On the facts of the case, the Magistrate found that in view of the evidence of Tarapada Ghatak, Statistical clerk, the prosecution should have examined the clerk before whom the return was initially to be filed. The grounds of law were raised before him: (1) The prosecution is barred by limitation; and (2) the Indian Minos Act, 1923, (Act IV of 1923), having been repealed by the Mines Act, 1952, (Act 35 of 1932), the Indian Metalliferous Mines Regulation which was framed under the 1923 Act was no longer in force. The Magistrate negatived the first contention and found that the prosecution report had been laid within time.

4. With regard to the Second contention he, however, held that the Indian Metalliferous Regulation, 1928, is not the law in force within the meaning of Article 20 of the Constitution. Accordingly relying on a decision of the Andhra High Court reported in Re Lingareddi Venkatareddi, AIR 1956 Andhra 24, he acquitted the respondents.

5. The Government Advocate on behalf of the appellant contended that the Magistrate is wrong in coming to the conclusion that 'Since the clerk who receives the return in question is not examined, it cannot be said that the return was not received. So the presumption is the return might not have been sent to the Statistical section for compilation through oversight'. Secondly, he contended that under Section 24 of the General Clauses Act, the Indian Metalliferous Mines Regulation, 1926, is deemed to be operative.

6. With regard to his first contention, the Government Advocate relied upon Section 114 of the Indian Evidence Act and submitted that the Court may presume the existence of any tact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Here in this case, the respondents as well as the owner of the concerned Mines were to file the annual return for the year 1957, on or before 21-1-58. The said return not having been tiled the Chief Inspector issued a reminder on 8-4-58. Copy of the letter (Ext. 3) along with the postal receipt (Ext. 1/1) were filed by the prosecution. It is argued that when the letter was issued by the Chief Inspector of Mines, the presumption is that the official business was conducted in common course of natural events.

Accordingly, the Courts should presume the existence of these facts. The Chief Inspector of Mines after being satisfied that no return was received in his Office, issued a reminder on 8-4-1958. There is no reason why this presumption should not be drawn. Nothing has been shown to indicate that the Chief Inspector of Mines issued this reminder without being satisfied regarding the non-tiling of the annual returns under Section 66 of the Mines Act, 1952, the onus of which lies on the respondents. Hence the Magistrate is apparently wrong in coming to the conclusion that the clerk who receives the returns not having been examined the return is deemed to have been received in the Office of the Chief Inspector. The only evidence of the prosecution witness was that the annual returns are simply received by a clerk and are sent to the Statistical Section after they are dairies. This being the nature of evidence. I am clearly of opinion that the presumption under Section 114 of the Indian Evidence Act would apply to the facts of this case.

7. Coming to the second contention as raised by the Government Advocate, it was argued that the decision of the Andhra High Court is not a correct decision on principle. The Indian Mines Act, 1923 (Act IV of 1923) has been repealed by Section 88 of the Mines Act, 1952 (Act XXXV of 1952) and the Central Government have been empowered to frame rules and regulations under Section 58(n) and Section 57(t) respectively. The Mines Rules 1955 were framed under Section 58 of the 1952 Act. No regulations as contemplated under Section 57(t) have been promulgated yet Hence the question is whether under Section 24 of the General Clauses Act, the Indian Metalliferous Mines Regulation 1926, is or is not still operative for purposes of prosecution, In short, the simple question is whether the Indian Metalliferous Regulation, 1926, is still the law in force under Article 20 of the Constitution, which lays down that no person shall be convicted for any offence except for violation of the law in force at the time of the commission of the Act.

8. Section 24 of the General Clauses Act (Act X of 1897) lays down;

'Where any Central Act or Regulation is, after the commencement of this Act, repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided any order, scheme, rule, form or by-law, issued under the repealed Act or Regulation, 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'.

The whole contention on behalf of the appellant was that the Indian Metalliferous Mines Regulation, 1926, is not inconsistent with the provisions of 1952 Act, nor has it been expressly superseded. Accordingly, it is contended the Regulation even after the 1952 Act continued in force and was deemed to have been issued under the said Act. In AIR 1956 Andhra 24, a batch of Criminal cases was referred to the High Court by the Sub-divisional Magistrate, Guntur, under Section 432, Cr. P. C. The facts were that the junior Inspector of Mines, Nellore, filed three charge-sheets against the owner and manager of Harnath Gopal Mica Mines situated at Chenganpalii in the district of Nellore for contravention of certain rules made under the Indian Mines Act, 1923, and stated to be punishable under Sections 73 and 66 of the Indian Mines Act, 1952. Two contentions were raised before the Andhra High Court.

We are not concerned with the second contention. The only contention with which we are concerned in this appeal was that the Rules and Regulations framed under the old Act were no longer in force because of the repeal of that Act. Accordingly, the punishment under the provisions of the new Act for violation of the Rules made under the old Act is not permissible. Their Lordships of the Andhra High Court held that the phrase 'law in force' in Article 20 must be understood in its natural sense as being the law in fact in existence and in operation as distinct from the law 'deemed' to have become operative by virtue of the power of legislature to pass retrospective laws. Article 20 prohibits conviction under a law which is only to be 'deemed to be force'. The Rules and Regulations framed under the repealed Mines Act, 1923, cannot be described as 'law in force' within the meaning of Article 20 and the accused cannot be convicted under Sections 66 and 73 of the Mines Act of 1952 for violation of the rules framed under the repealed Act of 1923 even if these rules are kept alive by virtue of Section 24 of the General Clauses Act. This decision of the Andhra High Court came up for discussion before the Calcutta, Patna, Madhya Pradesh, Rajputana and Punjab High Courts.

9. In the case of G. D. Bhattar v. The State, (S) AIR 1957 Cal 483, a Division Bench of the Calcutta High Court considered the aforesaid decision of the Andhra High Court, but did not follow the same and distinguished the decision of the Supreme Court in Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1953 SC 394 on facts. Eventually their Lordships held that when the Mines Act of 1923 was repealed in 1952, and replaced by the Act of 1952, under Section 24 of the General Clauses Act the rules framed under the repealed Act of 1923 were deemed to be rules made under the new Act of 1952 so as to be perfectly valid and as the prosecution was launched long thereafter the rules framed under the repealed Act must be held to have been perfectly valid and part of the law in force within the meaning of the expression in Article 20 of the Constitution.

10. Regarding the deeming provisions, Lord Mansfield in the case of Mostyn v. Fabrigas, (1775) 93 ER 1021 was of opinion that a fiction of law shall never be contradicted so as to defeat the end for which it was invented, but for every other purpose it may be contradicted. The decision, along with the Privy Council decision in Commr. of Income-tax, Bombay v. Bombay Trust Corporation Ltd., AIR 1930 PC 54, and the decision of the Supreme Court in State of Bombay v. Pandurang, AIR 1953 SC 244, were considered by the Madhya Pradesh High Court in the case of State of Madhya Pradesh v. A. K. Jain in AIR 1958 M.P. 162. A Division Bench of that Court took the view that 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 it 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. After the coming into force of the General Clauses Act, 1897, savings have, by the operation of that Act automatically attached to a repeal. 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, even though there is no express saving clause in the repealing Act. By virtue of Section 24 of the General Clauses Act the rules, regulations and bye-laws made under the Mines Act, 1923, are continued in force and are deemed to have been made or issued under the provision of the Mines Act, 1952, even though there is no express saving clause in Section 88 of the Act of 1952.

It is 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. For, once that statutory fiction contained in Section 24 of the General Clauses Act, 1897, 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 it they had been made under the new Act. While coming to the above conclusion, the learned Judges relied upon the decision in (S) AIR 1957 Cal 483 and did not prefer to follow the decision in AIR 1956 Andhra 24.

11. The case of State of Rajasthan v. Pannalal, AIR 1938 Raj 59, arose out of an appeal by the State against the acquittal of the respondents of an offence under Section 73 of the Mines Act, 1952, read with the Rules 23 and 71 of the Indian Metalliferous Mines Regulation, 1926. The same contentions were raised before the Rajasthan High Court. Wanchoo, C. J. held in the case that the Regulations of 1926 were still in force in spite of the repeal of the 1923 Act by Section 88 of the Mines Act of 1952. When the Second proviso to Section 6 of Part B States (Laws) Act, 1951, provided that the rules which were in force in Part B States under the laws repealed would continue and would be deemed to have been framed under the laws extended by the Act of 1951, it meant that the rules in force under Ordinance No. 34 of 1948 became rules under the Mines Act of 1923 which was being extended to Rajasthan State. Therefore, when Section 88 of the Act of 1952 repealed the Mines Act of 1923 and re-enacted it, Section 24 of the General Clauses Act came into play and any rules and regulations made under the Act of 1923 would continue till they were superseded by fresh rules under the new Act.

12. The question whether the coal mines regulations, 1926, survived after the repeal of the Mines Act, 1923, by Mines Act of 1952, was raised before the Patna High Court in the case of Karam Chand Thapar v. State of Bihar, AIR 1958 Pat 378. The learned Judges of the Patna High Court took the view that although the Indian Coal Mines Regulations of 1926 were framed under Section 29 of the Indian Mines Act, 1923, it survived after the repeal of that Act under Section 88 of the Mines Act, 1952. The language of Section 24 of the General Clauses Act clearly shows that it is intended to apply to all refutations whether they are rules and regulations simpliciter or whether they are rules and regulations which shall have effect as if enacted under this Act. It is manifest that the Regulations are in factual existence as Regulations, though for many purposes they are treated as if they are enacted in the Statute. The Regulations have not lost their identity as Regulations and therefore Section 24 of the General Clauses Act would apply and it therefore follows that the Regulations would survive after repeal of the old Act by Section 88 of the new Act.

13. The only other decision I need not refer to is the decision of the Punjab High Court reported in Ram Rattan Seth v. State, AIR 1959 Punj 60. That was a case also under the Indian Metalliferous Mines Regulation framed under the Mines Act, 1923. The same question whether the Regulation stood repealed along with the Act of 1923 was raised. The learned Judge following the decision in (S) AIR 1957 Cal 483 and distinguishing the Andhra High Court decision in AIR 1956 Andhra 24 came to the conclusion that the Indian Metalliferous Mines Regulations, 1926, framed under Section 29 which has since been repealed and replaced by the Mines Act, 1952, and under which no rules and regulations are framed are kept alive by Section 24 of the General Clauses Act and are deemed to be the law in force within the meaning of Article 20 of the Constitution of India so as to enable the prescribed authority to launch criminal prosecution against the person or persons who are found to contravene the aforesaid regulations.

14. In view of the above decisions there appears to be some force in the contention of the Government Advocate. There is no escape from the fact that Section 24 of the General Clauses Act applies to the present case and the regulation continues to be the law in force within the meaning of Article 20 of the Constitution. Accordingly, the view taken by the learned Magistrate is clearly wrong. Thus, I would set aside his judgment both on fact and in law.

In the result, the respondents in view of the Indian Metalliferous Mines Regulations, 1926, being the law in force, are clearly guilty, and as such they are convicted under Section 66 of the Mines Act, 1952 for having omitted to file the return without any reasonable excuse under Section 66. The burden of proof was upon them and they have not attempted to discharge the same.

The respondents are accordingly sentenced to pay a fine of Rs. 50/- each.

The appeal is allowed.


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