L.N. Chhangani, J.
1. This is a reference by the Sessions Judge, Jaipur City recommending that the proceedings in prosecution for an offence under Section 73 of the Indian Mines Act, 1952 (hereinafter to be referred as the new Act) against the accused M/s. JaipurMineral Development Syndicate (Private) Limited and. others, being in violation of Article 20 of the Indian Constitution should be quashed.
2. The material facts are these:
The Jaipur Mineral Development Syndicate (Private) Limited owns Degotha Jharna soap-stone Mines at Dausa. It is situate in the territories comprised by the former Jaipur State. I am told there were no rules similar to 'the Mines Creche Rules, 1946' in force in the former Jaipur State. Alter the integration of the Jaipur State in the United State of Rajasthan, the Indian Mines Act, 1923 with the various rules and regulations framed under it was extended to Rajasthan by P.art B States (Laws) Act No. 3 of 1951 which came into force on 1st April, 1951.
Under the Mines Creche Rules, 1946, the owners of mines were required to construct creche in accordance with the plans prepared in conformity with rules and previously approved by the competent authority. The Mines Act, 1923 was repeated and its main provisions were repealed and re-enacted in the Mines Act, 1952 with some amendment. No new rules were framed under the new Act but under Section 24 of the General Clauses Act the rules and regulations framed under the old Act continued to be in force as deemed to have been enacted under the new Act.
The accused omitted to construct the creche and ultimately the Regional Inspector of Mines, Ajmer, Ajmer Inspection Region, at the instance of the Chief Inspector of Mines in India filed a complaint against the accused for offence under Section 73 of the new Act for contravention of Rule 3 of the Mines Creche Rules, 1946. The complaint was presented in the Court of the District Magistrate but was transferred to the Court of City Magistrate vide District Magistrate's order No. 9322 Judl. dated 24-10-58.
3. The accused after appearance questioned the validity of the prosecution mainly on two grounds:
(i) The Mines Creche Rules, 1946, were framed under the Indian Mines Act, 1923 which had been repealed and replaced by the Indian Mines Act, 1952 under which admittedly no fresh rules and regulations have been framed. It was contended that the rules and regulations framed under the Act of 1923 though continued in force by Section 24 of the General Clauses Act are no longer a law in force within the meaning of Article 20 of the Constitution. The submission was that as these rules were deemed to have been enacted in the new Act, they could not be treated as the law factually in force within the requirements of Article 20 of the Constitution.
(ii) That under Rule 3(b) the mine owners were given nine months time from the date of the publication of the rules to construct creches. The rules having been published in 1946 and the nine months period having expired long before the enforcement of the Rules in Rajasthan, the accused had no reasonable opportunity of complying with the provision of Rule 3(b) and, therefore, they should not be held liable to prosecution.
4. The learned Magistrate overruled both the preliminary objections. With regard to objection No. 1, the learned Magistrate after considering the various cases cited at the Bar preferred the viewtaken in Ram Rattan Seth v. State, AIR 1959 Punj 69 and refused to follow the view taken is Linga-reddy Venkatareddy In re, AIR 1956 Andhra 24. The learned Magistrate of course did not refer to the Supreme Court case Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1953 SC 394 in a detailed manner but it appears that he did not consider it as applicable to the facts of the case. With regard to the second objection, the learned Magistrate held that the benefit or concession available under Rule 8(b) could not be claimed by the accused at that stage.
5. The accused felt aggrieved by the decision of the learned Magistrate overruling their preliminary objections and filed a revision in the Court of the Sessions Judge, Jaipur City. The Sessions Judge arrived at contrary conclusions. He held that there could be no valid conviction for violation of rules framed under the old Act and kept alive by Section 24 ot the Rajasthan General Clauses Act.
Dealing with the second preliminary objection, the learned Sessions Judge observed that the nine months period specified in Rule 3(b) for construction of creches calculated from the 23rd of July, 1946--the date of the publication of the rules expired on 23-4-1947 long prior to the extension of the rules to Rajasthan. Consequently, they had no oppor-tunity to undertake the construction within the specified period and, therefore, they could not be held criminally liable. He accordingly made a reference for quashing the proceedings against the accused.
6. The reference has been opposed by the Assistant Government Advocate appearing lor the State. Mr. Kasliwal on behalf of the accused has, however supported the reference.
7. To appreciate the controversy over the first point, it will be necessary to quote the relevant portion of Article 20 of the Indian Constitution. It reads as follows:
'No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence'.
The. controversy has centered over the expression 'law in force' at the time of the commission of the Act. The question as to the proper meaning of this expression was considered and decided in AIR 1953 SC 394. In that case the offences were committed in the months of February, March and April, 1949. The charges against the accused referred to offences committed as having been under the various sec-tions of the Indian Penal Code as adopted in the United State of Vindhya Pradesh by Ordinance No. 48 of 1949.
This Ordinance was published on 11-9-1949 much after the commission of the offences. The Ordinance was, however, given a retrospective effect and on that basis it was in force at the time of the commission of the offence. On behalf of the accused, a preliminary objection was taken that the accused could not be punished in view of the provisions of Article 20 of the Constitution. The learned Judges discussed the scope of Article 20 and made the following pertinent observations:
'This Article in its broad import has been enacted to prohibit convictions and sentences under ex post facto law'.
Before the Supreme Court on behalf of the prosecution it was suggested that since the law at the time when it was passed was a valid law and since this law has the effect of bringing this Ordinance into force from 9-8-1948 it cannot be said that the convictions are not in respect of a law in force at the time when the offences were committed. Repelling this contention, their Lordships observed that: .
'That would be to import a somewhat technical meaning into the phrase 'law in force' as used in Article 20'.
It was further observed:
Law in force' referred to therein must be taken to relate not to a 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'.
After pointing out how the interpretation relied on by the prosecution would nullify Article 20, their Lordships further made the following observations amplifying the position:
'The law in force as used in Article 20 must be understood in its natural sense as being the law in fact in existence and in operation at the time of the commission of the offence as distinct from the law 'deemed' to have become operative by virtue of the power of Legislature to pass retrospective laws'.
It will be clear from a consideration of the facts of the Supreme Court case that it dealt with a case fundamentally different from the present case. In that case at the time when the offences were committed there was no law creating the acts of the accused offences. The law was passed subsequently creating the acts of the accused offences even though they were lawful at the time when the acts were committed.
It can, therefore, be easily stated that the Supreme Court case is clearly distinguishable on facts and cannot govern the present case. A controversy has, however, arisen on account of the earlier observation made in the judgment of the Supreme Court, namely, 'law in force' referred to therein must be taken to relate not to law deemed to be in force. The Andhra Pradesh High Court in AIR 1956 Andhra 24 considers these observations as conclusive and holds that 'law in force' can never be law which shall be deemed to be in force. The Sessions Judge, Jaipur City has followed the view taken by the Andhra Pradesh High Court.
After carefully going through the Supreme Court case and the Andhra Pradesh case I find it difficult to subscribe to the view taken by the Andhra High Court. (1) The earlier discussions about the scope of Article 20 of the Constitution, (2) the facts of the case, (3) the subsequent explanatory observations emphasising the distinction between the 'law actually in force' and 'the law brought into force with retrospective effect' on account of the competence of the Legislature to pass retrospective laws, and (4) the context in which the observations were made, were not given due consideration by the Andhra Pradesh High Court.
The Supreme Court had no occasion to consider and decide and did not actually decide that laws continued in force by a fiction under Section 24 of the General Clauses Act, and factually in force at thedate of the commission of offences and not brought into operation with retrospective effect should be outside the expression 'law in force' as used in Article 20.
8. In my opinion, the Andhra Pradesh High Court has read much more in the Supreme Court observations than what they actually contain. The Andhra Pradesh case was considered in G. D. Bhatter v. State, (S) AIR 1957 Cal 483. Guha Ray J. in the leading judgment summed up the position in the following words:
'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. With all respect to their Lordships of the Andhra High Court I must say that they appear to have mis-applied the dictum of the Supreme Court in AIR 1953 SC 394.'
In AIR 1959 Punj 69 the Calcutta view was approved and the Andhra Pradesh view was dissented from.
9. On a consideration of the purpose of Article 20 of the Constitution and on a proper consideration of the observations of the Supreme Court in entirety, I have no hesitation in holding that the rules framed under the Mines Act of 1923 and continued in force by Section 24 of the General Clauses Act as deemed to have been enacted under the new Act come within the expression 'law in force' appearing in Article 20 of the Constitution and the punishment of the accused cannot be barred under Article 20 of the Constitution, I am, therefore, unable to accept the view taken by the Sessions Judge.
10. Dealing with the second preliminary objection, I may observe that a proper analysis of Rule 3 leads to the following conclusions:
Rule 3(a) imposes a duty on every owner of Mine to construct a creche in accordance with plans prepared in conformity with the rules and previously approved by the competent authority. This sub-rule governs all cases irrespective of the fact whether a person acquires ownership of a mine prior to or subsequent to the publication of the rules. Rule (b) prescribes a period of nine months from the date of the publication of the law within which the owners of mine can construct creche without incurring criminal liability.
This Sub-rule (b) obviously applies to the mines which were in working condition at the time of the publication of the rules. It was a sort of concession given to the existing owners of mine. In the present case a question may be raised whether the owners of mines in Rajasthan could claim concession for a further period of nine months after the enforcement of these rules in Rajasthan; but it is difficult, in my opinion, for the accused to evade the general liability imposed under Sub-rule (a) after the expiry of nine months from the date of the enforcement of these rules.
The general liability imposed under Sub-rule (a) cannot be evaded except on a clear case made outby an owner of mine for indulgence under Rule 3(b), it is for the accused to make out a proper case for exemption by reference to Sub-rule (b). Full and complete information on the relevant points bearing, on the applicability and Sub-rule 2 has not been brought on record and both the Courts could not and did not dispose this point in a satisfactory manner. Be that as it may, it is difficult to quash proceedings at this stage by reference to Sub-rule 3(b). The second point on which the reference has been made also is devoid of force, in my opinion.
11. In these circumstances, I am unable to accept the reference. The reference is rejected-The trial Magistrate will proceed with the trial and will deal on merits any grounds that might be urged by the accused with reference to Rule 3(b). The learned Sessions Judge has also taken into consideration the fact that the accused had in the meanwhile constructed the creche. The learned Magistrate will also take into consideration this fact while determining the guilt of the accused or determining the extent of the sentence.