1. This Rule was issued at the instance of landlords who are being prosecuted before a Presidency Magistrate of Calcutta under Section 40, West Bengal Premises Rent Control (Temporary Provisions) Act, 1950.
2. It raises a point of law which has not yet received decision from any Court to my knowledge. Briefly, the facts are that in July 1948 a tenancy was created by the petitioner in favour of one Satyaranjan Bhattacharjee at the time when the Rent Control Ordinance of 1946 was in force. It is alleged now that the accused-petitioners at that time took a premium or pugree or selami of about Rs. 200/-. It is for act of theirs in 1948 that they are now sought to be prosecuted under the present law. The provision of 1946 Ordinance briefly, and in plain language, was that if any one took a selami like that, he incurred a penalty which might be imposed by the Rent Controller. There was no provision for prosecution for any offence committed by him. Under the present Act of 1950, under Section 40 an offence has been created and prosecution provided for in the Court of a Magistrate. Taking advantage of this new legislation, in 1950, an application was filed on 23-7-52 by the tenant for action under Section 40 and the Magistrate began proceedings against the landlord-petitioners. Under Section 8, Bengal General Clauses Act if there was a liability to a penalty, that only was perhaps saved. There is no allegation of any one suing the petitioners before under that Rent Control Ordinance for enforcing the penalty under that Ordinance so that any question of pending proceedings could arise. I do not express any opinion whatsoever as to whether there is any Court in which proceedings under that Ordinance can now be taken at all.
3. Under Article 20 of the Constitution of India it is clearly provided that 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, so that, since the passing of the Constitution of India if the act charged was not an offence at the time when it was committed, there can be no conviction therefor whatever the subsequent legislation may have done. As I have pointed out this act was not an offence for which any person could be convicted at the time when the act is said to have been committed, namely, July 1948. Therefore the proceedings that had been taken against the two petitioners violate their constitutional rights and therefore such proceedings must be quashed.
4. The proceedings are accordingly quashedand this Rule is made absolute.