1. On the 23rd January, 1947, at 4-30 or 5 a.m., the twelve petitioners were arrested by police officers; but were not told why they were arrested, or under whose orders they were arrested, or even under what provision of law. From their homes they were taken to the Central Jail at Vellore. Later on, during the working hours of the Government Press, Ordinance I of 1947, signed by the Governor of Madras, was published in the Fort St. George Gazette of that day, Part IV-B, Extraordinary, which empowered the Provincial Government or the Chief Presidency Magistrate to issue an order for the detention of any person, if the Provincial Government or the Chief Presidency Magistrate, as the case might be, was satisfied that it was necessary to detain that person with a view to prevent him from acting in any manner prejudicial to the public safety or to the maintenance of public order. In the course of the same day, two of the petitioners filed applications under Section 491 of the Code of Criminal Procedure for the issue of write of the nature of Habeas Corpus directing the Government of Madras to produce the petitioners before the Court. Neither the Chief Presidency Magistrate nor the Superintendent of the Central Jail, Vellore, was impleaded, as it was not then known who had issued the order for arrest or where the petitioners were detained. On Monday, the 27th January, the remaining petitioners filed petitions asking for the same reliefs.
2. It was alleged that these petitioners were illegally arrested and detained, because they were not told by the police officers arresting them under what authority the arrests were made. Having since become acquainted with Ordinance I of 1947, two arguments have been put forward on behalf of the petitioners. The first is that the arrests were illegal, because they were effected at a time when the Ordinance had not become law, in that it had not, as required by Section 88 of the Government of India Act, been promulgated. The second is that the requirements of Section 4 of the Ordinance had not been complied with, in that the petitioners had not been informed on what grounds they had been detained.
3. When the matter came on for hearing on Wednesday, the 29th January, no reasons had by then been given to the petitioners. On that day the petitions were adjourned to give the learned Counsel for the petitioners an opportunity of meeting the points raised by the learned Crown Prosecutor and of impleading the Chief Presidency Magistrate, who was found to have issued the order. On Friday, the date to which the petitions were adjourned, an affidavit was filed by the Chief Presidency Magistrate to the effect that he had given reasons to the petitioners, that he had informed them that they could make representations against the orders concerning them, and that he would give them every facility to do so. In view of this affidavit, it is unnecessary to say very much with regard to the second point raised by the learned Counsel against the validity of the detention. It is very difficult, without having before us all the material available, to decide whether or no the Presidency Magistrate was justified in not communicating to the petitioners for more than a week the grounds on which his order had been based; but as he presumably knew the grounds before he issued the order, one would have expected him to have furnished the petitioners with the reasons for their arrests and detention within a day or so. Since, however, the reasons were subsequently furnished, we should not be justified in ordering the release of the petitioners on the ground of this delay.
4. The more important question is whether the arrests of the petitioners were illegal, because at the time of their arrests, the Ordinance had not become law. It is not denied by the learned Crown Prosecutor that publication in the Fort St. George Gazette was necessary to give the Ordinance the force of law; and it is true that the petitioners were arrested before the act of promulgation had taken place. It is however well-known maxim of the law regarding the interpretation of Statutes that the law takes no account of fractions of a day, for the very practical reason that it is ordinarily impossible to know the moment at which an Act came into force.
5. It is well settled that an Act which comes into force on a particular day is deemed to have effect from the first moment of that day. Applying that principle to the facts of this case, the Ordinance must be deemed to have had effect from midnight on the night of the 22nd, 23rd, which means that it was in operation at the time when the petitioners were arrested. It is unnecessary to cite authorities for the proposition that a statute begins to operate from the first moment of the day on which it becomes law; because the learned advocate for the petitioners does not in general deny it. That the law in India on this subject is the same as in England is indicated by a decision of this Court in In re Court-Fees (1922) 45 M.L.J. 557 : I.L.R. Mad. 685 in which case the Government announced an increase in court-fees on the 5th May, 1922, which was not published until after certain suits had been filed on the Original Side of the High Court. It was nevertheless held that the plaintiff was bound to pay the enhanced court-fee on the plaints filed by him on that day.
6. The learned advocate for the petitioners has pointed out the difference between the wording of Section 3(12) of the Imperial General Clauses Act and that in Section 3(7) of the Madras General Clauses Act in the definition of the word 'commencement,' as used with reference to an Act or Regulation. Whereas the Imperial General Clauses Act defines 'commencement' as meaning the day on which the Act or Regulation comes into force, the Madras Act-with which we are here concerned-defines 'commencement' as meaning the time at which the Act comes into force. There is no reason, however, to think that the Madras Legislature, in framing the definition of 'commencement,' meant to give a different meaning to that word from that given by the Imperial Government and to depart from the long-recognised interpretation, whereby fractions of a day are ignored and the Statute deemed to come into force at the first moment of the day on which it becomes law.
7. Section 1(3) of the Ordinance says that it shall come into force at once, from which it is argued that it came into force at the moment that it became law, i.e., was published. Our attention has not been drawn to any-Act, Ordinance or Statute in which the expression 'at once' has been used. 35 and 36 Vict., c. 65,S. 3, provided for an application for an order of affiliation...after the passing of this Act. In interpreting this clause the learned Judges in Tomlinson v. Bullock (1879) 4 Q.B. D. 230 held that this meant that the Act came into immediate operation, which was construed as meaning the 10th of August, 1872, the day on which the Act became law. They therefore held that the Act operated from the first moment of that day and therefore applied to a child born at any time of that day, even though the child might have been born before the royal assent was given to the Act.
8. Our attention has not been drawn to any instance since the Acts of Parliament Act of 1793 in which a person has been found guilty of having committed an offence, when the Act constituting the offence was not at the moment at which it was done an offence. Nor have we been shown any case since that year in which a person has been made liable for arrest for an act for which he was not liable to be arrested at the moment that he did it, presumably because care is ordinarily taken to see that Penal Statutes, even by a legal fiction, do not have retrospective effect, thereby violating an elementary principle of justice that a man should not be punished for an act that was not punishable at the time when it was committed. A violation of this elementary principle has indeed occurred in this case; but it is hoped that the purpose of effecting the arrests at such an early hour before the Ordinance had been promulgated was not to take shelter behind a technical point in the interpretation of Statutes in order to be able to violate this elementary principle j of justice with impunity. However that may be, we are unable to say that the arrests of the petitioners were illegal. The petitions are therefore dismissed:
9. We have been asked to grant a certificate under Section 205 of the Government of India Act to enable the petitioners to appeal to the Federal Court. The questions discussed in these applications do not however involve any interpretation of the Government of India Act, still less of any order in Council. The matters argued before us relate to the interpretation of Ordinance I of 1947 and to a general rule regarding the interpretation of a Statute. It is true that the learned advocate for the petitioners raised a question as to the meaning of 'promulgation' in Section 88 of the Government of India Act; but the learned Crown Prosecutor conceded the correctness of the view of the petitioners learned advocate that 'promulgation' meant publication, and that publication in the Fort St. George Gazette was necessary in order to make the ordinance signed by the Governor effective. No certificate will therefore be granted.