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In Re: Swami Arunagirinathar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1939Mad21; (1938)2MLJ863
AppellantIn Re: Swami Arunagirinathar
Cases ReferredLondon County Council v. Aylesbury Dairy Co.
Excerpt:
- - by sub-section (1) of that section where either chamber of the indian legislature refuses leave to introduce, or fails to pass in a form recommended by the governor-general, any bill, the governor-general may certify that the passage of the bill is essential for the safety, tranquility, or interest of british india or part thereof and thereupon if the bill has already been passed by the other chamber, the bill shall on signature by the governor-general notwithstanding that it has not been consented to by both chambers forthwith become an act of the indian legislature in the form of the bill as originally introduced or proposed to be introduced in the indian legislature or (as the case may be) in the form recommended by the governor-general; and if the bill has not already been so.....alfred henry lionel leach, c.j.1. the appellant in this case has been convicted on three charges under section 7(1)(a) of the criminal law amendment act, 1932, read with section 117 of the indian penal code, and has been sentenced on each charge to one year's rigorous imprisonment, the sentences to run concurrently. section 7(1)(a) reads as follows:whoever with intent to cause any person to abstain from doing or to do any act which such person has a right to do or to abstain from doing, obstructs or uses violence to or intimidates such person or any member of his family or person in his employ, or loiters at or near a place where such person or member or employed person resides or works or carries on business or happens to be, or persistently follows him from place to place, or interferes.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. The appellant in this case has been convicted on three charges under Section 7(1)(a) of the Criminal Law Amendment Act, 1932, read with Section 117 of the Indian Penal Code, and has been sentenced on each charge to one year's rigorous imprisonment, the sentences to run concurrently. Section 7(1)(a) reads as follows:

Whoever with intent to cause any person to abstain from doing or to do any act which such person has a right to do or to abstain from doing, obstructs or uses violence to or intimidates such person or any member of his family or person in his employ, or loiters at or near a place where such person or member or employed person resides or works or carries on business or happens to be, or persistently follows him from place to place, or interferes with any property owned or used by him or deprives him of or hinders him in the use thereof, shall be punished with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.

2. Therefore a person who with intent to cause any person to abstain from doing or to do any act which he has a right to do or to abstain from doing, loiters near that person's residence is guilty of an offence and renders himself liable to punishment for a term which may extend to six months or with fine which may extend to five hundred rupees or with both' imprisonment and fine. Section 117 of the Indian Penal Code provides that whoever abets the commission of an offence by the public generally or by any number or class of persons exceeding ten, shall be punished with imprisonment for a term which may extend to three years or with fine or with both. The Criminal Law Amendment Act, 1932, added, to the list of crimes what is now known as 'picketing'. It is not necessary, to inquire into the circumstances which led to this addition. The addition was made, and that suffices so far as the Court is concerned. Nor is the Court called upon to inquire into the policy of applying this Act. All that the Court has to consider is the section and the facts which the prosecution says constitute' the offence described in the section. If the proved facts constitute an offence within the meaning of the section the Court must apply it and it cannot enter upon a discussion whether other means exist of vindicating the law. With these preliminary observations I will turn to certain of the facts which have been proved.

3. On the 21st April, 1938, the Government of Madras issued an order in these terms:

The Government have decided that Hindustani should be taught to all pupils in Forms I to III of Secondary Schools. They direct that this decision be given effect to in the School year 1938-39 in the 12S Secondary Schools mentioned in the list submitted by the D. P. I. with his letter read above.

2. The Director is requested to circularise the Schools concerned and address Government separately on the question of the employment of a Hindustani Teacher in each of these Schools and also on the payment of Provincial grants for the purpose to non-Government Schools.

4. It will be observed that the language referred to in this order is Hindustani, but in the agitation which followed the issue of this order the language has always been referred to as Hindi. It is not necessary to dwell on the points of difference between Hindustani and Hindi. This order aroused a great deal of resentment in parts of the province and a league called the Anti-Hindi Propaganda League was formed. Public meetings were called, volunteers were enrolled to resist the introduction of Hindi in the Schools and appeals were made for subscriptions. The headquarters of the league were established in Madras and arrangements were made for the boarding and lodging of the volunteers within the city. Three public meetings were addressed by the appellant who took a prominent part in the movement. On the 11th June, 1938, one Sivananda Adigal described as 'the dictator' of the league was arrested and his place was taken by the appellant, who led the agitators in Madras until his own arrest on the 21st June, 1938. When the appellant was in charge of the movement he was also referred to as 'the dictator'. The appellant addressed three public meetings in Madras, one on the 10th June, 1938, in the Cathedral Road, another on the 13th June, 1938, in the Nattu Pillayar Koil Street, George Town, and the third on the 14th June, 1938, in Vepery. The case for the prosecution is that at these meetings the appellant incited his hearers to picket the house of the Honourable Mr. Rajagopalachari, the Premier of Madras, with a view to compelling him to take steps to withdraw the order which the Government had issued with regard to the teaching of Hindi in the Schools of the Province. From the 1st June to the 29th June, 1938, extensive picketing took place in front of the Premier's house. As soon as one band of picketers was dispersed another took its place and the picketing was certainly more than peaceful.

5. On the arrest of the appellant charges were framed under Section 7(1)(a) of the Criminal Law Amendment Act, 1932. The first charge was that the appellant in furtherance of the Anti-Hindi Propaganda Movement on the 10th June, 1938, abetted the commission of the offence under Section 7 (1)(a) of the Criminal Law Amendment Act, 1932, by Tamilians numbering more than 10 persons by inciting them by means of speeches made to volunteer their services to loiter in front of the Premier's house, No. 48, Bazulullah Road, Mambalam, and picket the place and offer Satyagraha in order to cause the Premier to cause the cancellation of the order of Government introducing Hindi in Schools in this Presidency which the Premier had a right to abstain from doing and thereby committed an offence punishable under Section 117 of the Indian Penal Code. The two other charges were similarly worded and had reference to the other two meetings. After a lengthy inquiry by the Third Presidency Magistrate the appellant was found guilty and the sentences already referred to were imposed upon him.

6. In the Court below and in this Court a number of legal arguments was advanced on behalf of the appellant. In this Court the legal arguments were confined to these: (1) The Criminal Law Amendment Act, 1932, was no longer in force, it having been repealed by Act XX of 1937, known as the Repealing and Amending Act, 1937; (2) the Criminal Law Amendment Act, 1935, was invalid because the Governor-General had not taken the steps contemplated by the first clause of Sub-section 2 of Section 67-B of the Government of India Act; (3) the extension of the Criminal Law Amendment Act, 1932, to the Province of Madras had not been properly notified and even if it had been so notified the notification had lost its validity; (4) even if Section 7(1)(a) of the Criminal Law Amendment Act, 1932, is in force the Act does not apply to the picketing of the bouse of a public servant; and (5) there can be no abetment of an offence under Section 7 (1)(a) of the Criminal Law Amendment Act, 1932.

7. The Criminal Law Amendment Act, 1932, was passed by the Indian Legislature and was made to extend to the whole of British India, including British Baluchistan and the Sonthal Parganas. As it originally stood the Act was to remain in force for three years from its commencement, which was the 19th December, 1932. Section 1(4) provided that the whole of the Act, except Section 4 and Section 7 should come into force at once, and the Local Government might by notification in the local official Gazette, direct that Section 4 or Section 7 should come into force in any area on such date as might be specified in the notification. On the 26th December, 1932, the Government of Madras issued a notification directing that Section 7 should come into force throughout the Presidency as from the 27th December, 1932, but as an error had crept into the notification the necessary correction was made on the 10th January, 1933. In 1935 a Bill which afterwards was enacted as the Criminal Law Amendment Act, 1935, was introduced into the Indian Legislature. Certain sections of the Criminal Law Amendment Act, 1932, were repealed, but Section 7 was not repealed. Section 1(3) which limited the duration of the Act to three years was repealed. The Bill was introduced into the Assembly on the 2nd September, 1935 and was rejected on the 12th September, 1935. It was, however, passed in its entirety by the Council of State on the 28th September, 1935, and on the 4th October, 1935, it was certified by the Governor-General under the powers conferred upon him by Section 67-B of the Government of India Act. By Act XX of 1937, the Act of 1935 was repealed, but there was express provision continuing the Criminal Law Amendment Act, 1932, as amended by the Act of 1935. By Act XIX of 1936 the General Clauses Act had been amended and it also expressly, continued in force the amendment of the Act of 1932. I will refer to the relevant provisions of the Act of 1937 and the Act of 1936 in more detail in a moment.

8. With regard to the first contention advanced on behalf of the appellant, the Criminal Law Amendment Act, 1932, was validly amended by the Act of 1935 and this has been accepted, but it is said that inasmuch as the Act of 1937 repealed the Act of 1935 the whole of the Act of 1932 has disappeared. Section 4 of the Act o? 1937, however, stated:

The repeal by this Act of any enactment shall not affect any Act or Regulation in which such enactment has been applied, incorporated or referred to : and this Act shall not affect the validity, invalidity, effect or consequences of anything already done or suffered or any right, title, obligation or liability already acquired, accrued, or incurred, or any remedy or proceeding in respect thereof, or any release or discharge of or from 'any debt, penalty, obligation, liability, claim or demand or any indemnity already granted, or the proof of any past act or thing; nor shall this Act affect any principle or rule of law, or established jurisdiction, form or course of pleading, practice or procedure, or existing usage, custom, privilege, restriction, exemption, office or appointment, notwithstanding that the same respectively may have been in any manner affirmed, recognised ,or, derived by, in or from any enactment hereby repealed.

9. Act XIX of 1936 inserted in the General Clauses Act Section 6-A which reads as follows:

Where any Act of the Governor-General in Council or Regulation made after the commencement of this Act repeals any enactment by which the text of any Act of the Governor-General in Council or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of. any such amendment made by the enactment so repealed and in op ,:ration at the time of such repeal.

10. In the face of Section 4 of the Act of 1937 and of Section 6-A of the Act of 1936 it is not open to the appellant to contend that the Criminal Law Amendment Act, 1932, has been repealed in its entirety. These sections leave the Criminal Law Amendment Act of 1932 so far as Section 7 is concerned, intact. This disposes of the first point.

11. It is said that the Criminal Law Amendment Act, 1935, is nevertheless invalid because the Governor-General did not follow the procedure contemplated by Section 67-B(2) of the Government of India Act. By Sub-section (1) of that section where either chamber of the Indian Legislature refuses leave to introduce, or fails to pass in a form recommended by the Governor-General, any Bill, the Governor-General may certify that the passage of the Bill is essential for the safety, tranquility, or interest of British India or part thereof and thereupon if the Bill has already been passed by the other chamber, the Bill shall on signature by the Governor-General notwithstanding that it has not been consented to by both chambers forthwith become an Act of the Indian Legislature in the form of the Bill as originally introduced or proposed to be introduced in the Indian Legislature or (as the case may be) in the form recommended by the Governor-General; and if the Bill has not already been so passed, the Bill shall be laid before the other chamber, and if consented to by that chamber in the form recommended by the Governor-General, shall become an Act on the signification of the Governor-General's assent, or if not so consented to, shall, on signature by the Governor-General become an Act. Sub-section (2) provides that every such Act shall be expressed to be made by the Governor-General, and shall, as soon as practicable after being made, be laid before both Houses of Parliament, and shall not have effect until it has received His Majesty's assent, and shall not be presented for His Majesty's assent, until copies thereof have been laid before each House of Parliament for not less than eight days on which the House has sat; and upon the signification of such assent by His Majesty in Council, and the notification thereof by the Governor-General, the Act shall have the same force and effect as an Act passed by the Indian Legislature and duly assented to. The learned Advocate for the appellant says that inasmuch as the Governor-General did not cause the Act to be laid before Parliament it was not lawfully passed, but this argument ignores the proviso to Sub-section (2). The proviso is to the effect that where in the opinion of the Governor-General a state of emergency exists which justifies such action, the Governor-General may direct that any such Act shall come into operation forthwith, and thereupon the Act shall have force and effect subject, however, to disallowance by his Majesty in Council. Now it is not suggested that His Majesty in Council has disallowed the Act referred to and it is a fact that the Governor-General on 17th December, 1935, in exercise of the powers conferred upon him by the Proviso directed that the Act should come into operation forthwith. AH that is required in such circumstances is that the Governor-General shall exercise his powers. The question whether those powers shall be exercised is a matter for the Governor-General alone to decide. In Bhagat Singh v. The King-Emperor (1931) 61 M.L.J. 279 : L.R. 58 IndAp 169 : I.L.R. 12 Lah. 280 (P.C.) the Privy Council had to consider an Ordinance made by the Governor-General under the Government of India Act, 1915, Section 72 which authorises him in cases of emergency to promulgate Ordinances for the peace and good Government of British India. The Judicial Committee held that it could not be disputed that an emergency existed and that the Ordinance was one for the peace and good Government of British India. The Governor-General was the sole Judge in such matters and was not bound to give any reasons for promulgating such Ordinances. The same principles apply. The Governor-General did exercise his powers and having exercised them the enactment became a lawful Act.

12. The learned Advocate for the appellant contends that as the Criminal Law Amendment Act, 1932, was only intended to be in operation for a period of three years at the time of the issue of the notification by the Government of Madras extending Section 7 to the Presidency it was of a temporary nature and the notification must also be deemed to be of a temporary nature. He says that as there was no re-notification after the Act had been amended to give permanent effect to Section 7 the Act as it now stands has not been validly notified. The notification which was issued by the Government of Madras applied Section 7, and the Criminal Law Amendment Act, 1932, so far as Section 7 is concerned is still on the statute book. I hold that there was no necessity for re-notification and that Section 7 applies to this province.

13. This brings me to the fourth contention of the learned Advocate for the appellant. As I have indicated this is to the effect that the Act cannot be deemed to apply to picketing of a public servant but must be deemed to apply only to picketing of private individuals. It was conceded that for the purposes of deciding the extent of the application of Section 7 only the Act itself could be examined. There is no indication within the Act that a public servant whose house is picketed cannot claim the benefit of the section. All that the Act requires before a person is convicted under Section 7, is that the offender shall loiter at or near the place where the person resides or works or carries on business or happens to be, with intent to cause that person to abstain from doing or to do any act which he has a right to do or to abstain from doing. There is an explanation to the section which states that encouragement of indigenous industries or advocacy of temperance, without the commission of any of the acts prohibited by the section is not an offence under the section, but the explanation stops there. Because a person holds a public office the law does not allow him to be molested at will even for political purposes. He is as much entitled to protection as anybody else. I can see no justification whatever for the plea that the offence contemplated by Section 7(1)(a) of the Criminal Law Amendment Act, 1932, when committed in respect of a public official, whether high or low, should go unpunished.

14. With regard to the contention that there can be no abetment of an offence under Section 7(1)(a), Section 109 of the Indian Penal Code provides that whoever abets any offence shall, if the Act abetted is committed in consequence of the abetment, and no express provision is made by the Code for the punishment of such abetment, be punished with the punishment provided for the offence, and as I have already pointed out, Section 117 provides for additional punishment where a person abets the commission of an offence by the public generally or by any number or class of persons exceeding ten, which was the case here. Section 40 of the Penal Code provides that the word 'offence' denotes a thing made punishable under the Code or under any 'special' or 'local' law as defined in the Code. Section 41 defines a 'special law' as being a law applicable to a particular subject, and Section 42 defines a 'local law' as a law applicable only to a particular part of British India. It is admitted that if the Criminal Law Amendment Act, 1932, is to be deemed to be a special law within the meaning of Section 41 then there can be an abetment of an offence under Section 7(1)(a) of the Criminal Law Amendment Act, 1932. I am in agreement with the opinion expressed by the learned authors of Ratanlal's Law of Crimes, 14th Edition, page 78, that the special laws contemplated in Sections 40 and 41 are laws such as the Excise, Opium, and Cattle Trespass Acts creating fresh offences, that is, laws making punishable certain things which are not already punishable under the Penal Code. There it is pointed out that the Whipping Act is not a special law in this sense, but merely provides a supplementary or alternative form of punishment for offences which are already punishable primarily under the Penal Code. The Act of 1932 deals with picketing and makes picketing in certain circumstances an offence. I hold that the appellant was lawfully charged with abetment.

15. Coming now to the merits of the case it has been proved that at the public meeting of the 10th June, 1938, the appellant in the course of his speech observed:

If you were true heroes, all of you should be prepared to offer Satyagraham in front of the house of the Prime Minister from to-morrow. Soon upon your listening to this speech you should come forward and have your names entered.

and later on said:

Now amongst these, namely, Camam, Petam, Dhanam and Thandam (which have been translated as conciliatory measures, sowing dissensions, gifts and punishment) we have come to the stage of Thandam (punishment). If you do not now enlist yourselves in this war (agitation) we will not again turn our eyes towards your face.

16. At the second meeting, that is, the meeting of the 14th June, 1938, the appellant said:

If you are true Tamilians at least hundred of you should come and offer Satyagraha. We are now sending men in batches of two. The suffering which the policeman undergoes in the hot sun for us cannot be described. He asks whether all of us could not come in a body. They said 'if you do not come in a body tomorrow, we will beat you with this margosa stick'. In this war, you should sacrifice your life, or should give away your property. All mothers should cause their sons to take part in this war and go to jail. We have not now committed any offence. We have not committed murder. Therefore you should all come forward to offer Satyagraha.

17. At the third meeting, the appellant said:

If you are all true Tamilians young men should come in hundreds to-morrow and offer Satyagraha in front of his house and go to prison....You should assist us with your body, wealth and labour. Those who are willing to come as volunteers may raise their hands. You may give your names. You may give money. I finish by saying that by thus assisting us, you may save the honour of the Tamil Nad and the Tamil language. My heart burns to see you remaining in this manner. I request you to offer assistance.

18. These speeches were taken down in shorthand and the shorthand writers were not cross-examined as to their accuracy. No evidence was led with a view to showing that the statements had not been made. In fact the learned Counsel for the appellant made no attempt to dispute the accuracy of this evidence. It has also been proved that these meetings were attended by large numbers of people and there can be no doubt that the appellant did incite his hearers to loiter in front of the house of the Premier with a view to compelling him to change an order which the Government had passed. The Premier was entitled to say that he would not move to change the order. Rightly or wrongly the order embodied the policy of the Government and he could not be compelled to change it by the means adopted by the appellant and his supporters. The evidence discloses that for nearly a month picketers in considerable numbers assembled before the Premier's house and loitered there within the meaning of the section, for the purpose of compelling him to do something which he had the right to abstain from doing. The action of the people who assembled in front of the Premier's house was not confined to loitering, but for purposes of this section we do not require to go beyond loitering. In my opinion the offences with which the appellant has been charged have been fully proved, and he has been rightly convicted by the Trial Magistrate. He abetted an offence which falls within the four corners of the section and he has rendered himself liable to punishment.

19. It is said that the punishment awarded by the Trial Magistrate is excessive and should be reduced. Inasmuch as these constitute first offences of the appellant and can collectively be described as a 'first' offence and inasmuch as the circumstances are unusual we consider that the sentence of 12 months' rigorous imprisonment is not called for. We consider that the ends of justice will be met if the sentence is reduced from one of 12 months' rigorous imprisonment to one of four months' rigorous imprisonment. This will apply to each charge and the sentences will run concurrently.

Abdur Rahman, J.

20. I agree with the conclusion arrived at by my Lord the Chief Justice and should like to make a few observations in regard to the legal points raised by the learned Counsel for the appellant.

21. The Criminal Law Amendment Act (XXIII of 1932) came into operation on the 19th of December, 1932. It was a temporary measure and Section 1(3) of the Act had provided that it would be kept in force for a period of three years. The whole of the Act was extended to British India and was with the exception of Sections 4 and 7 brought into force at once; but these sections were to be brought into effect by the various Local Governments separately as and when they decided to apply them to any area within their respective jurisdictions. The Government of Madras directed Section 7 to come into force in the whole of this Presidency on the 27th of December, 1932, and a notification to that effect was duly published in the Fort St. George Gazette on that date. An error had crept in this notification and this was rectified in the notification dated 4th January, 1933, which was duly published in the Gazette on the 10th January, 1933.

22. A Bill proposing a repeal of Section 1(3) of the Act (XXIII of 1932) was introduced in the Central Legislative Assembly in September 1935. The object of that Bill was to place the Criminal Law Amendment Act permanently on the Statute Book of India. It was rejected by the Legislative Assembly but was passed by the Council of State. Section 67-B of the Government of India Act, 1919, had provided that if either Chamber of the Indian Legislature failed to pass a Bill in a form recommended by the Governor-General, he might certify that the passage of the Bill was essential for the safety, tranquillity or interests of British India and the Bill if it had already been passed by the other chamber, would when signed by him become an Act of the Indian Legislature. Since the Bill was, as stated above, refused by the Legislative Assembly and passed by the Upper chamber, the Governor-General exercised his authority and certified the Bill and when signed by him on 4th October, 1935, it became an Act of the Indian Legislature.

23. Section 67-B(2) of the Government of India Act, 1919, had also provided that every such Act would be expressed to have been made by the Governor-General and should, as soon as practicable after it had been so made, be laid before both Houses of Parliament for a period of at least eight days on which each House was sitting and then presented for His Majesty's assent. Upon the signification of such assent by His Majesty in Council and the notification thereof by the Governor-General the Act was to come into operation and was to have the same force and effect as an Act passed by the Indian Legislature.

24. A proviso to this sub-section authorised the Governor-General to direct that any act made by him was to *come into operation immediately, if, in his opinion, a state of emergency existed which justified such an action. Acting under this sub-section his Excellency the Governor-General declared that an emergency existed which justified his action and directed the Act to come into operation immediately. The Governor-General gave his assent on the 17th of December, 1935 and it consequently was brought into force on that day.

25. It has now been contended by the learned Counsel for the petitioner that inasmuch as this Act was made by the Governor-General on the 4th of October, 1935, he could not bring it into operation by his own declaration after a lapse of two months and thirteen days. It is urged that the proviso to the sub-section being in the nature of an exception should not have been availed of by the Governor-General, who should have seen that steps were being taken for complying with the requirements of Sub-section. 2 and for laying the Act before both the Houses of Parliament and receiving His Majesty's assent for which the period between the 4th of October and the 17th of December, 1935, was sufficient.

26. A reference to the words used in Section 67-B(2) of the Government of India Act would show that it was the opinion of the Governor-General in regard to the existence of a state of emergency which entitled him to act and bring the act into operation. It is not for this tribunal, or for a matter of that for any other tribunal, to ascertain whether any state of emergency existed at the time. The question whether there was any emergency or not was to be determined by the Governor-General and no other tribunal could or can possibly sit in judgment and decide whether his opinion was correct or otherwise. It was his opinion alone in regard to the existence of the state of emergency that mattered. The words used in the section are absolutely clear and are capable of no other interpretation. In a case which went up to the Judicial Committee of the Privy Council a similar contention was raised in regard to another section of the Government of India Act. It was summarily rejected by their Lordships. See Bhagat Singh v. King-Emperor (1931) 61 M.L.J. 279 : 1931 L.R. 58 IndAp 169 : I.L.R. 12 Lah. 280 (P.C.). Section 67-B did not lay down that a declaration by the Governor-General in regard to the state of emergency must necessarily synchronise with the date on which the Act was certified or made by him. In fact it is possible to conceive of cases in which no state of emergency might have existed at the time when the Act was made by the Governor-General but it might have come into existence subsequently when he might have been obliged to bring it into operation at once. Can it be seriously argued that as some time had elapsed since the Act was made, the Governor-General had lost his power to declare the existence of a state of emergency although one might have come into existence in the meantime? We do not know what steps were taken by the Government to place this Act before the two Houses of Parliament and whether it was possible or not to comply with the procedure provided in the section and obtain His Majesty's assent within the period that had elapsed between the date on which the Bill was made by the Governor-General and the date on which he directed it to be brought into force. But even if it be assumed that no steps were taken for that purpose, it is impossible to hold that the mere inaction on the part of the Government had taken away the power from the Governor-General to express an opinion that a state of emergency had come into existence, and to order the Act to be brought into force immediately. If he had decided to bring the Act into operation on the 4th of October, 1935, the order, it is conceded, would be unassailable. It has also been admitted that if he had done so within a reasonable time after that date, no exception could have been taken to that order. If that be so, and if he were the sole Judge of the fact whether a state of emergency existed or not on a particular day, how can his powers be held to have come to an end by the passage of time during which the Act was not in force? He must be presumed to have had sufficient material before him to express an opinion on the subject and as we are only concerned with the expression of his opinion, it appears to be futile to argue that the evidence on which he formed his opinion should have now been placed before the Court in order to determine whether his action was justified. This would necessitate an investigation which the Court is not competent to make. It is-unnecessary therefore to go into the reasons which must have decided the Governor-General before expressing an opinion in regard to the existence of the state of emergency and ordering the Act to be brought into operation. One fact, however, is obvious. Had this Act not been brought into force on that day or the next day, the principal Act, that is, the Criminal Law Amendment Act of 1932 would have expired on the 19th of 'December, 1935 and this Act of 1935 would have been rendered ineffectual and useless. If the passage of the Bill were essential for the safety, tranquillity or interests of British India and if no exception could be taken to its being certified by the Governor-General, as it has not been taken before us, and if it were not possible to receive His Majesty's assent during the next two days, it was apparent that a state of emergency might have been considered to have come into existence which justified such an action. He must have had sufficient reasons for acting in the manner in which he did and it is entirely unnecessary to indulge in surmises. It must therefore be held that this objection is devoid of any force and must be overruled.

27. It is then contended that this power had been conferred on the Governor-General under a proviso which should not be taken to be effective until an attempt was proved to have been made to comply with the requirements of the main clause to which it must be taken to have been appended as subordinate. It is not possible to accede to this contention either. A perusal of Section 67-B(2) of the Government of India Act would show that the proviso was added to the sub-clause with the object of dispensing with the procedure laid down in the sub-clause under certain circumstances. If those circumstances were found to be existing, the Governor-General was authorised to bring the Act into operation at once without waiting for the period which would have elapsed if the Act were to be laid before both the Houses of Parliament for a given number of days when they were in Sessions and then presented to His Majesty for assent. There is nothing in the section which would entitle one to hold that these powers could be exercised by him only at a particular time. On the contrary the language of the section is clear and is to the effect that if he discovered a state of emergency at any time before the Act had come into force, he was authorised to function and bring the Act into operation at once. In that case His Majesty in Council has full authority under the proviso to the sub-clause itself to disallow the Act if it did not meet with his approval. Viewed in this light the proviso must be taken to be in the nature of a condition on the provisions of the sub-clause itself and cannot be held to depend on it for its enforceability. In other words, the Act was required to be submitted to both the Houses of Parliament and then to His Majesty for assent only when the Governor-General did not consider that a state of emergency existed which would authorise him to enforce the Act made by him earlier. There was nothing in Section 67-B, which could have prevented the Governor-General from applying the Act even if it had been submitted to the House of Parliament, and before it had received His Majesty's assent. That this should have been so is entirely consonant with reason. After all the ultimate duty of governing the country and maintaining law and order was his and it was therefore not only proper but necessary that he should have had the power to bring a particular law into operation if he were satisfied of the existence of a state of emergency in which he considered it necessary to act under the proviso to Sub-clause 2 of Section 67-B of the Government of India Act. There can thus be no doubt that as laid down in Rex v. Dibdin (1910) P. 57 : 26 T.L.R. 150 : 101 L.T. 722:

The proper way to regard a proviso is as a limitation upon the effect of the principal enactment.

28. The third point urged on behalf of the petitioner was that the Act of 1935 was itself repealed by Act XX of 1937 and the Criminal Law Amendment Act of 1932 should therefore be held to have been restored to its original position and would be of no use in 1938 as it was brought into existence for a period of three years only. If we remember the nature of the Act passed in 1935 the argument advanced by the learned Counsel for the appellant would lose its force. The Act of 1935 was, as stated above, brought into existence with the object of repealing Section 1(3) of the Criminal Law Amendment Act of 1932 and thus doing away with its temporary nature. Once the Act of 1935 came into force, Section 1(3) of the principal Act must be held to have been taken out of that Act and the words regarding the temporary nature of the Act having been thus deleted, the Act of 1932 must be regarded to have been placed on the statute book of India permanently. Having fulfilled its purpose, the Act of 1935 thus remained of no value and any further retention of the same would have led to confusion and would have been in any case useless. It was for that reason that it was repealed by Act XX of 1937. This is not however all. Section 4 of the Act (XX of 1937) provides that the repeal by this Act of any enactment shall not affect any act in which such enactment has been applied or incorporated. When faced with this provision, the learned Counsel for the petitioner contended that it had no application since the word 'applied' must be taken to refer to the application of an earlier enactment to a later enactment and cannot be taken to imply, include or contemplate the alteration of the earlier enactment by the operation of the latter. He contended similarly that the word 'incorporated' must not be taken to mean anything else except when certain provisions of an enactment have to be inserted in or combined to another and not when certain existing provisions of an Act have to be deleted. First of all there is no justification for us to give to the words used in the section the narrow meaning which the learned Counsel for the appellant has been trying to do. Not having been defined by the General Clauses Act or by the Act in which they have been used, they should be deemed to have been used in their ordinary sense and there is no reason to hold that the application of an enactment necessarily means the application of an earlier enactment to the latter. Secondly we are concerned just now with the effect of the application of or even of incorporation of a later enactment in the former. It is immaterial for this purpose if, as a result of a subsequent enactment, some provision is either added to or subtracted from an earlier Act. It may have been either, and Section 4 of Act XX of 1937 provides that the repeal of any enactment-Act of 1935 being the enactment in this case shall not affect any Act, that is, Act XXIII of 1932 in which such enactment (that of 1935) has been applied or incorporated. Our attention has been drawn in this connection to an amendment of the General Clauses Act, Section 6-A by Act XIX of 1936. This provision in the General Clauses Act makes the position still clearer that the effect of Act XX of 1937 could not have been as argued by the learned Counsel for the appellant.

29. The next contention urged on behalf of the appellant was to the effect that even if these objections were decided against him, it must be held that, so far as Section 7 of the Criminal Law Amendment Act was concerned, it had no force in this' province after the expiry of three years for which the principal Act was passed by the legislature. The argument has been put thus: This Act of 1932 was brought into force for a period of three years. The notification issued by the Government of Madras in 1932 must therefore be taken to have been for three years only. Although the temporary nature of the Act was gone as soon as the Act of 1935 was passed, nothing has been done in this Presidency to continue the operation of Section 7 after December 1935. The contention has obviously no force. When the Local Government applied Section 7 of the Criminal Law Amendment Act to this Presidency, no period was fixed by it for which this section was to be in force in this part of the country. If the Criminal Law Amendment Act had died by efflux of time a natural death or had not been made permanent, the operation of Section 7 in this Presidency would have certainly come to an end in December 1935. But once we find that the statute containing Section 7 continued to remain in force even after December, 1932, it would have been superfluous for the Madras Government to issue another notification to bring into operation a section which was already in force in this Presidency.

30. It was then attempted to be argued that the Criminal Law Amendment Act was brought into force in peculiar circumstances which prevailed at the time when the Act was passed and Section 7 of the Act must not therefore be applied to circumstances which were not then under contemplation. It was suggested that the Act was brought into operation to prevent boycott, or what has come to be described in ordinary parlance as 'picketing' and was never intended to be applicable to the set of circumstances in which these prosecutions have been started. We are thus asked to interpret the statute in accordance with the intention of those who made it. It must be remembered that if the words of the statute are unambiguous, no more is necessary than to interpret them in their ordinary or what is usually known as literal or grammatical sense bearing in mind that the words employed by the framers can best declare their intention. Moreover we are not really concerned with the intention of the framers but with the intendment of the Act itself and which can only be taken to refer to the meaning of the words used therein; and when we find that the language employed in the section, which we have now been called upon to interpret, is clear and admits of only one meaning the task of interpretation can be hardly said to arise. In these circumstances it is unnecessary to speculate on the intention of the framers of the Act. This rule has been laid down by Lord Halsbury in Leader v. Duffey (1888) 13 A.C. 294 in the following words:

Whatever the instrument, it must receive a construction according to the plain meaning of the words and sentences therein contained...and it is arguing in a vicious circle to begin by assuming an intention apart from the instrument itself and having made that fallacious assumption to bend the language in favour of the assumption so made.

It is quite true that the Act which we have now been called upon to interpret is penal in its nature and we have therefore been asked to construe the section strictly. The rule of strict construction requires that the language should be construed in such a manner as not to bring cases within the ambit of the section which do not fall within) the reasonable meaning of its words or terms. It only means as held in London County Council v. Aylesbury Dairy Co. (1898) 1 Q.B. 106 that

no violence must be done to its language to bring people within it but rather care must be taken that no one is brought within it who is not brought within it in express language.

31. Bearing these principles of interpretation in mind and applying them to the section which we have now been called upon to construe, the first question is if there are any words employed by the framers of the Act in the section which can be so interpreted as to show that the Act imputed to the appellant is not covered by them. I have read and re-read the section with care and find nothing therein which would justify me in putting the construction which we have been asked to place on it. If the Premier were entitled to move the Legislature or the Government to repeal the order which was passed to introduce the compulsory teaching of Hindi and if people were loitering in front of his house with the object of forcing him to move in the matter in order to have the order cancelled, which he had a right to do or abstain from doing, the action imputed to the accused would apparently fall within the mischief the section was designed to prevent. Is it possible for us, sitting as interpreters, to say that the words of the section would not bring such a conduct within its plain meaning? For this purpose it is impossible to read or import words into the section which are not there. It was suggested that the Act referred to in Section 7 must be that of a private individual which the person' is entitled to commit or abstain from doing as distinguished from the act of a Government officer or that of a public servant. But is there anything in the section which would justify our interpreting the word 'right' in the manner suggested by the learned Counsel for the petitioner? I find nothing to that effect and would therefore agree in holding that the conduct imputed to the appellant is covered by the language employed in the section.

32. It was argued in the end that the accused was not being prosecuted for an offence under Section 7 of the Criminal Law Amendment Act of 1932 but for the abetment of that offence and since it was not an offence under the Indian Penal Code or under a special law as defined in Section 41, Indian Penal Code, the abetment of the same was not punishable. Having heard the learned Counsel for the appellant and the learned Advocate-General on this point, there is no doubt in our minds that the Criminal Law Amendment Act falls well within the definition of special law as defined in Section 41, Indian Penal Code. A special law has been defined in the Code as being applicable to a particular subject. The Indian Penal Code was passed in 1861 and attempted to define the offences which were according to the then prevailing state or conditions of the society considered to be punishable. After all it presented the minimum which could be expected to be observed by the citizens of the state at the time. It is only natural that with the growth of new ideas and development of new conditions, new circumstances would come into being calling for protection and new acts would have to be brought within the list and declared as offences. This could only be done by either amending the Indian Penal Code or passing Local or Special Laws. If it were required to deal with a special class of cases and if it were considered advisable not to amend the Indian Penal Code, but to pass a separate Act for the purpose, the Act would fall within the definition of Special Law as defined by Section 41, Indian Penal Code and an abetment of the same would be punishable under Chapter V of the Penal Code.

33. Reliance was placed by the learned Counsel for the petitioner on a number of cases and he attempted to show that when certain acts did not fall within the definition of an offence under the Penal Code, their abetment would not be punishable. This is obvious. But as we are holding the Criminal Law Amendment Act to be a Special Law within the meaning of Section 41, Indian Penal Code, no useful purpose would be served by examining the cases cited on behalf of the appellant in detail.


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