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Bhagwat Singhji Vs. Kesar Singhji - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtRajasthan High Court
Decided On
Case NumberCriminal Revn. No. 398 of 1969
Judge
Reported inAIR1970Raj281; 1970CriLJ1561
ActsConstitution of India - Articles 362 and 363; Code of Criminal Procedure (CrPC) - Sections 197A
AppellantBhagwat Singhji
RespondentKesar Singhji
Appellant Advocate A.L. Mehta, Adv.
Respondent Advocate V.S. Dave, Adv.
DispositionPetition dismissed
Cases ReferredRam Babu Saxena v. State
Excerpt:
.....them, whether within or outside the territories of the state, immediately before the 15th day of august, 1947.'it is on this article of the covenant that the petitioner bases his claim. state of rajasthan, air 1964 sc 444, their lordships pointed out that the personal rights, privileges and dignities of the ruler of an indian state guaranteed or assured under any covenant or agreement, entered into with the concurrence of the government of india, which are recommended under article 362 of the constitution to be respected, avail the rulers in their status as indian citizens and not in recognition of any sovereign authority continuing to remain vested in them.orderkan singh, j.1. the revision before me raises the question whether the former ruler of an indian state is exempt from personal appearance as a complainant in a criminal case instituted by him on the basis of his so-called personal privileges saved by or arising from the covenant resulting in the integration of the indian state of which the complainant was the ex-ruler with the union of states. for appreciating the point the relevant facts may shortly be stated as follows:--2. the petitioner his highness maharana shri bhagwat singhji lodged a complaint against shri kesarsingh, the opposite party for an offence under section 500 indian penal code in the court of the munsiff magistrate, first class, udaipur. the complaint was filed by his highness maharana shri bhagwat singhji himself......
Judgment:
ORDER

Kan Singh, J.

1. The revision before me raises the question whether the former ruler of an Indian State is exempt from personal appearance as a complainant in a criminal case instituted by him on the basis of his so-called personal privileges saved by or arising from the covenant resulting in the integration of the Indian State of which the complainant was the ex-Ruler with the Union of States. For appreciating the point the relevant facts may shortly be stated as follows:--

2. The petitioner His Highness Maharana Shri Bhagwat Singhji lodged a complaint against Shri Kesarsingh, the opposite party for an offence under Section 500 Indian Penal Code in the Court of the Munsiff Magistrate, First Class, Udaipur. The complaint was filed by His Highness Maharana Shri Bhagwat Singhji himself. Shri Kesarsingh was an employee of his Highness Maharana Shri Bhagwat Singhji. The statement of His Highness Maharana Shri Bhagwat Singhji under Section 200, Criminal Procedure Code was recorded by the learned Magistrate at the Maharana's Palace at Udaipur where the learned Magistrate held his Camp, though at that stage he did not consider or decide the question relating to the alleged personal privilege of the Maharana for exemption from appearance in Court. When the accused appeared and the complainant was not himself present on a date of hearing, an objection was raised by the accused that the complaint be dismissed on account of the non-appearance of the complainant. At that stage the claim for exemption from personal appearance in Court was raised on behalf of the Maharana. The learned Magistrate went into it and by his order dated 9-12-1966 he negatived the claim and asked the petitioner to appear in person in Court, if he wanted to prosecute his complaint and he made it clear that if he did not choose to appear on a further date of hearing without a lawful excuse, provisions of Section 259, Criminal Procedure Code will come into play. Aggrieved of this order of the learned Magistrate the petitioner went up in revision to the Court of Session. The learned Additional Sessions Judge heard the revision application, but he dismissed it. It is in these circumstances that the present revision application has been filed in this Court.

3. I have heard learned counsel for the parties at sufficient length. Two cases have been brought to my notice, one of the Punjab High Court reported as Shaukat Ali Khan v. State of Punjab, AIR 1960 Punj 565, and another of the Madhya Pradesh High Court reported as Abdul Alim Khan v. Sagarmal, AIR 1963 Madh Pra 162, which deal with a question like the present one. The Punjab High Court has almost in similar circumstances upheld the claim of privilege on behalf of the ex-Ruler, while, on the other hand, the Madhya Pradesh High Court has negatived such a claim. The problem thus now is as to which view is to prevail and I will deal with the two cases at the appropriate stage. However, before I do that I may briefly refer to the covenant on which the claim of privilege is based.

4. The former State of Mewar was first integrated with the United State of Rajasthan which had the seat of Government at Kota. The new United State of Rajasthan which was thus formed with the integration of the former Mewar State had its seat of Government at Udaipur. The United State of Rajasthan comprising of all the Indian States in what was formerly Rajputana was formed from 7-4-1949. Its covenant is available as Appendix XL to the White Paper on Indian States. I need not refer to the various articles, which provided for the composition of the New State and also lay down how the legislative power of the New State was to be exercised and by whom. Article XIII which deals with the personal privileges of the Ruler of each covenanting State runs as follows:--

'The Ruler of each Covenanting State, as also the members of his family, shall be entitled to all the personal privileges, dignities and titles enjoyed by them, whether within or outside the territories of the State, immediately before the 15th day of August, 1947.' It is on this Article of the Covenant that the petitioner bases his claim. This raises the question as to how far this Article of the Covenant is enforceable in a Court of law.

5. The United State of Rajasthan which came into existence as a result of the aforesaid covenant ceased to exist with effect from 26-1-1950 when the Constitution of India came into force. Articles 362 and 363 make provision for matters relating to the Covenant with the erstwhile Rulers. I may read both the Articles:--

'Article 362. Rights and privileges of Rulers of Indian States. In the exercise of the power of Parliament or of the Legislature of a State to make laws or in the exercise of the executive power of the Union or of a State, due regard shall be had to the guarantee or assurance given under any such covenant or agreement as is referred to in Article 291 with respect to the personal rights, privileges and dignities of Ruler of an Indian State.'

'Article 363. Bar to interference by Courts in disputes arising out of certain treaties, agreements, etc. (1) Notwithstanding anything in this Constitution but subject to the provisions of Article 143, neither the Supreme Court nor any other court shall have jurisdiction in any dispute arising out of any provisions of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of this Constitution by any Ruler of an Indian State and to which the Government of the Dominion of India or any of its predecessor Government was a party and which has or has been continued in operation after such commencement, or in any dispute in respect of any right accruing under or any liability or obligation arising out of any of the provisions of this Constitution relating to any such treaty, agreement, covenant, engagement, sanad or other similar instrument.

(2) In this Article--

(a) 'Indian State' means any territory recognised before the commencement of this Constitution by His Majesty or the Government of the Dominion of India as being such a State; and

(b) 'Ruler' includes the Prince, Chief or other person recognised before such commencement by His Majesty or the Government of the Dominion of India as the Ruler of any Indian State.'

6. The proviso to Article 131 also throws some light on the legal efficacy of the Covenant. While the enacting part of the Article defines the original jurisdiction of the Supreme Court in disputes between the Government of India and one or more States; or between the two or more States, according to the proviso the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which having been entered into or included before the commencement of this Constitution continued in operation after such commencement or which provides that the said jurisdiction shall not extend to such a dispute.

7. In Sudhansusekhar v. State of Orissa, AIR 1961 SC 196, their Lordships of the Supreme Court had pointed out that Article 362 recommends to the Parliament and the State Legislatures in making laws after the Constitution to have due regard to the guarantee or assurance given under any covenant or agreement. Their Lordships pointed out that Article 362 is not restricted to agreements relating to the privy purse and covered all agreements and covenants entered into by the Rulers of Indian States before the commencement of the Constitution whereby the personal rights, privileges and dignities of the Ruler of an Indian State were guaranteed. Nevertheless it does not import any legal obligation enforceable at the instance of the erstwhile Ruler of a former Indian State. Their Lordships added that if despite the recommendation that due regard shall be had to the guarantee or assurance given under the covenant or agreement, the Parliament or the Legislature of a State makes laws inconsistent with the personal rights, privileges and dignities of the Ruler of an Indian State, the exercise of the legislative authority cannot, relying upon the agreement or covenant, be questioned in any Court, and that is so expressly provided by Article 363 of the Constitution.

8. In Bhagwat Singh v. State of Rajasthan, AIR 1964 SC 444, their Lordships pointed out that the personal rights, privileges and dignities of the Ruler of an Indian State guaranteed or assured under any covenant or agreement, entered into with the concurrence of the Government of India, which are recommended under Article 362 of the Constitution to be respected, avail the Rulers in their status as Indian citizens and not in recognition of any sovereign authority continuing to remain vested in them. In that case His Highness the Maharana of Udaipur had claimed immunity from proceedings under the Industrial Disputes Act and his claim was turned down.

9. I may now refer to the Punjab and Madhya Pradesh cases.

10. In the Punjab case the first information report for an offence under Section 408, Indian Penal Code was lodged by the Private Secretary to the Nawab of former Nalerkotla State which had integrated with the Pepsu Union, The Nawab was sought to be examined as a witness at the instance of the prosecution. The Nawab put in an application representing that he was immune from the ordinary process and was exempted from appearance in Court. The prayer of the Nawab was allowed and he was ordered to be examined on commission. The accused attacked the order in revision before the Court of Session, but was not successful. He then approached the High Court, The learned Judge held that the privilege of immunity from the ordinary process of Court of law had been safeguarded by Article 362 of the Constitution. The learned Judge referred to Para 240 in the White Paper and observed that the sovereign power at the time of integration of Indian States extended solemn assurance which later received constitutional recognition in Articles 362 and 363 guaranteeing the personal privileges and rights including protection from ordinary process of Courts to the Rulers of the integrating States. He accordingly came to the conclusion that personal appearance of the Nawab could not be insisted upon,

11. In the Madhya Pradesh case, the Nawab of Jaora whose State had integrated with what was then known as Madhya Bha-rat moved an application before the Magistrate in a complaint filed on behalf of the Nawab that he be examined as a witness on commission and insisting that as a former Ruler he was a privileged person exempt as of right from personal attendance. The learned Magistrate rejected the application. The Nawab then approached the High Court. The Punjab case aforesaid was cited before the learned Judge. The learned Judge came to the conclusion that a statement in the White Paper on States was relied on in the Punjab case, but according to him, a mere statement in the White Paper is not binding on the Court until it is shown that it was based on a constitutional or statutory provision. The Covenant of the former Ruler was a State Paper, but, according to the learned Judge, it did not become law unless it was made part of the Constitution or any Statute. The learned Judge referred to Section 133, Civil Procedure Code and Section 197-A, Criminal Procedure Code for the sake of analogy and held that unless the so-called privileges were embodied in any statute they could not be enforced in a Court of law.

12. Learned Counsel for the petitioner was not able to attack the reasoning given in the Madhya Pradesh case. There is no gainsaying the fact that every provision in a Covenant will not have the status of a law. There may be provisions in a Covenant which dealt with the transfer of territories or the formation of a new State and such provisions may be recognised by Courts as law partaking the character of an act of the State, but the' provisions in a Covenant dealing with the rights or privileges of individuals, be they ex-Rulers, cannot claim the status of a law and they will not be enforceable in Courts of law as such, unless there is legislative sanction in support of such provisions in the Covenant.

13. Learned counsel for the petitioner referred me to some passages in the Halsbury's Laws of England, Third Edition, Vol. 7 and Oppenheim's International Law. In Halsbury's Laws of England in para. 307, it is stated that treaties concluded by the Crown are in general binding upon the subject without express parliamentary sanction but the previous consent of, or subsequent ratification by, the legislature is legally necessary to their validity in certain cases. It is further stated that thus though treaties relating to war and peace, the cession of territory or concluding alliances with foreign powers are generally conceded to be binding upon the nation without express parliamentary sanction, it is deemed safer to obtain such sanction in the case of an important cession of territory and it is pointed out that where private rights of the subject are interfered with by a treaty concluded in time of peace, it is apprehended that the previous or subsequent consent of Parliament is in all cases required to render the treaty binding upon the subject and enforceable by officers of the Crown. In all cases the Courts are competent to inquire into matters involving the construction of treaties and other acts of State; and the plea of an act of State, or that the matter involves the construction of treaties, affords no valid defence to an action against officer^ of the Crown for interference with the private rights of a British subject or of a resident alien friend. This passage, to my mind, draws a distinction between treaties relating to war and peace, cessation of territories on the one hand, and treaties affecting or dealing with the private rights on the other. The former are taken to be binding without express parliamentary sanction whereas the latter are not.

14. In Oppenheim's International Law Vol. I, at page 37, it is observed that there is wide divergence of doctrine as regards the International Law being the part of the Municipal Law. Then the learned author deals with the position in foreign countries. He points out that so far as Great Britain is concerned all such rules of customary International Law as are either universally recognised or have at any rate received the assent of the country are per se part of the law of the land. To that extent there is still valid in England the common law doctrine, to which Blackstone gave expression in a striking passage, that the Law of Nations is part of the law of the land and it has been repeatedly acted upon by Courts. Apart from isolated obiter dicta it has never been denied by Judges, but it was observed that this unshaken continuity of its observance suffered a reverse as the result of the dicta of some Judges in Franconia case though later in the case of West Rand Central Gold Mining Co. v. King, 1905-2 KB 391 this classical doctrine was reaffirmed. A little later it has been pointed out by the author himself that such treaties as affect private rights and, generally, as require for their enforcement a modification or common law or of a statute must receive parliamentary assent through an enabling Act of Parliament and to that extent binding treaties which are part of International Law do not form part of the law of the land unless expressly made so by the legislature. The author then discusses the position in the United States and other countries. These passages far from supporting the learned counsel go against his submission. To my mind, no principle of international law is involved in the present case. With the formation of the United State of Rajasthan the inhabitants of the different States became, from the date of the merger, the subjects of the United State of Rajasthan and they could not be described as the subjects of a particular State. As pointed out by their Lordships of the Supreme Court in Ram Babu Saxena v. State, 1950 Raj LW 232 = (AIR 1950 SC 155) after the execution of the Covenant the covenanting States notionally retained their personality for the purposes of succession to Rulership etc., but they did not exist as such. After the Constitution came into force there were no Indian States as such within the boundaries of the Union of India even notionally. Therefore, there could be no international relationship as could be subject of any international law or any principle to govern the relationship of the rulers in the new State. The Rulers became citizens of the new State and did not retain any trappings of sovereignty. With the Constitution coming into force there remained only one sovereign in India namely, the Indian people. To my mind, therefore, there is no room to bring in any principle of International Law in giving effect to the Covenants and the passages on which learned Counsel for the petitioner has relied and which I have already referred do not render any help in the matter. The Covenants can be looked into only to the extent they have been referred to in the Constitution and no further. As pointed out by their Lordships of the Supreme Court, Article 362 only contains a recommendatory provision for the benefit of the Parliament or the State Legislatures in making the Laws and it does not, in any way, restrict the powers of legislation of the Parliament or the State Legislatures. It is a matter for the Parliament or the State Legislatures to see how far the so-called privileges of the erstwhile rulers were to be incorporated in any law. When the Criminal Procedure Code of the Central Legislature was extended to Rajasthan by the Part B States Act of 1961, no such privilege as is claimed was incorporated in the Criminal Procedure Code. The Parliament only inserted Section 197-A which gives protection in the matter of launching prosecution against an erstwhile Ruler, but so far as an erstwhile Ruler of an Indian State advances claim for exemption from personal appearance as a complainant or as a witness no such privilege has been recognised by the Criminal Procedure Code or any other law made by the competent legislature.

15. In these circumstances the so-called claim or privilege based on the Covenant without there being any legislative sanction behind it cannot be recognised by the Courts. The Courts below were, therefore, not wrong in refusing to grant exemption from personal attendance to the petitioner as a complainant.

16. The revision application has no force and it is hereby dismissed.


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