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In Re: Kandasamy Pillai and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in46Ind.Cas.161
AppellantIn Re: Kandasamy Pillai and anr.
Cases ReferredChartered Institute of Patent Agents v. Lockwood
Excerpt:
.....reasons we are satisfied that the rules came into force' directly they were published in the gazette and, therefore, that the offence is..........application of the law to every person for the time being executing the functions of an office to mention the, official title of the officer at present executing the functions. the result of this provision is that the words of rule 20 of the defence of india act must be read as if they contained after the words district magistrate the words 'acting district magistrate or magistrate executing the functions of a district magistrate.' there can be no doubt, therefore, that mr. reilly was competent as acting district' magistrate to give the consent, and this' point, therefore, fails. in the result the petition is dismissed.
Judgment:
ORDER

1. In this petition we are asked to revise the judgment of the Sessions Judge of Madura upholding the conviction of the accused for an offence under Rule 29 of the rules framed under the Defence of India Act of 1915 for having dissuaded one Ramu Pillai from entering into military service. It was contended by Mr. A. Subbarama Aiyar in the course of his able argument, first, that there was no such offence in the Madras Presidency and secondly, that if it was an offence, the Court of the Sub-Divisional Magistrate of Melur had no jurisdiction to try the charge in that (1) the ordinary Courts of the country have no jurisdiction, (2) there was no previous consent of the District Magistrate as required by the Act. After hearing the Advocate General in reply we had no doubt that the petition must be dismissed, but thought it advisable to give our reasons in a written judgment in view of the importance of the questions raised.

2. The first argument is based on the peculiar arrangement of the Act. Under Section 1, Sub-section (3), it is provided that Sections 1 and 2 shall come into operation at once, and that as for the rest of the Act it shall only come into operation in any province on notification by the Governor-General in Council in the Gazette of India. Section 2 empowers the Governor-General in Council to make rules for various general purposes and in particular for certain specified purposes; one of which is to prevent any attempt to. dissuade persons from entering into the Military or Police services of His Majesty (clause h). Sub-section 2 of the same section says that rules made under ' this section may provide that any contravention thereof should be punished with imprisonment up to a term of 7 years or with fine, etc. Sub-section 3 provides, that all rules made under this section shall be published in the Gazette of India and shall thereupon have effect as if enacted in this Act. The whole of these rules were admittedly published in the Gazette of, India. It is argued before us that the words 'enacted in this Act' must be read to mean that the rules became an additional section to the Act and that as only sections 1 and 2 same into operation at once, the rules, being ' treated as the rest of. the Act, can only come into operation after notification as provided in Section 1, Sub-section (3). This argument will, of course, reduce the Act to an absurdity. The scheme of the Act is to provide for the creation of rules and offences to apply at once to the whole of India and also to create in certain special conditions tribunals for the purpose of ousting the jurisdiction of the ordinary Criminal Courts in any province or part thereof to which the Governor-General by notification has made the remaining provisions of the Act applicable. To give effect to the contention would be to render the whole Act nugatory in spite of Section 1, Sub-section (3), which provides that sections 1 and 2 shall come into operation at once. It is of course our duty to construe an act in such a manner as to give effect to its provisions if it is possible to do so, and this can be done by reading the rules as part 'of the section under which they are framed, and nut as part of the rest of the Act. It is quite clear that where Section 1, Sub-section (3), was speaking of the rest of the Act coming into operation, it was referring to the subsequent sections, and not to the rules which are to be framed under Section 2 and to have effect as if enacted in this Act.

3. An argument was addressed on the construction of Section 22 of the General Clauses Act (X of 1897), which provides that where by any Act, which is not to some into force immediately on the passing thereof, a power is conferred to make rules, such rules shall not take effect till the commencement of the Act: and it was sought to introduce into the section words which would make it read, where by any Act a part of which is not to come into force immediately on the passing thereof, a power is conferred to make any rules, etc, such rules shall not take effect until the whole of the Act shall come into force'. It is not permissible to make any such addition to the section which would have the effect of negativing the purpose of the section, which is simply to provide power to make -the rules although the Act has not come into force, but to reserve their application In addition to this there is direct authority of the House of Lords against the contention. It is to be found in the case of Chartered Institute of Patent Agents v. Lockwood (1894) A.C. 347 In that case Lord Herschell clearly laid down that, where the section gives power to make rules, the rules are to be read as part of the section, his language being (page 358), Every rule which is intra vires at all events...is to be read into the section, and have just the same effect as if it had been contained in the Act itself.' For these reasons we are satisfied that the rules came into force' directly they were published in the Gazette and, therefore, that the offence is created.

4. The argument that such offence can only be tried by a Special Tribunal fails entirely, unless it is shown that Sub-sections 3 to 11 have been applied to the Madras Presidency. As it has been conceded that they have not been so applied; and the whole of the first argument has been based on that assumption, there is no foundation for this contention. We prefer, therefore, to leave the consideration of the effect of Sections 3 and 4 of the Act until such a time as these sections are so applied, or to the Courts of the Provinces where they are in force. Section 4, Clause (g), of the Criminal Procedure Code defines offence as any act or omission made punishable by any law for the time being in force', and Section 29 provides that any offence under any other law (which means any law other than the Indian Penal Code) shall, when no Court is mentioned in this behalf in such law, be tried by the High Court or by any Court constituted under this Code by which such offence is shown in the 8th column, Second Schedule, to be triable. Sections 3 to 11 of the special Act not being in force in this Presidency, there is no Court mentioned in this behalf. The Second Schedule provides under the heading 'Offences against other laws' for the trial of an offence punishable as this is by a Court of Session, Presidency. Magistrate or Magistrate of the First Class, There can, therefore, be no doubt that the trying Court had jurisdiction if the case was put before it in a proper manner.

5. The point is taken, however, that there was no previous consent by a District Magistrate as required by Rule 30. It was somewhat faintly argued that as neither the Defence of India Act nor the General Clauses Act define the words 'District Magistrate,' there was nothing to show what was meant by those words. We are clear, however, that where the procedure for the trial of an offence is that under the Criminal Procedure Code, we must look to the provisions of that Code for the meaning of the words used. District Magistrates were created by the Codes of Criminal Procedure, and Section 10 of the Code provides that in every District outside the (Presidency Town the Local Government shall appoint a Magistrate of the First Class who shall be called the District Magistrate. The point really pressed on us was that Mr. Reilly who gave the consent was not the actual District Magistrate. It appears, however, from the Gazette of the Government of Madras of 25th April 1916 that he was appointed to act as District Magistrate from the 1st June 1916. Then Section 17, Clause (1), of the General Clauses Act provides that in any Act it shall be sufficient for the purpose of indicating the application of the law to every person for the time being executing the functions of an office to mention the, official title of the officer at present executing the functions. The result of this provision is that the words of Rule 20 of the Defence of India Act must be read as if they contained after the words District Magistrate the words 'Acting District Magistrate or Magistrate executing the functions of a District Magistrate.' There can be no doubt, therefore, that Mr. Reilly was competent as acting District' Magistrate to give the consent, and this' point, therefore, fails. In the result the petition is dismissed.


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