1. This is an application in revision by Guddumal and Thuniamal against anorder of Sri Devaki Nandan Magistrate firstclass Kasumpti, dated 24-7-1951, passed in thefollowing circumstances.
2. One Amichand sued the petitioners on 30-11-1946 for recovery of a loan in the Court of the District Judge of Koti. The petitioners pleaded full satisfaction and filed a receipt in support of the contention. The District Judge decreed the suit on 29-6-1948, holding the receipt to be a forgery. The petitioners filed an appeal against the decree on 30-9-1948 before the Judicial Commissioner. Dr. J. N. Bannerji, Judicial Commissioner, who also exercised powers as a Judicial Committee., acting under a notification of the Chief Commissioner dated 14-1-1949, converted the appeal into an appeal to the Judicial Committee on 17-5-1949 and decided it as such on 24-5-1949, recommending to the Chief Commissioner that the appeal be dismissed and the petitioners prosecuted for filing a forged receipt. The Chief Commissioner accepted the recommendation and passed orders accordingly on 8-6-1949, and directed the file to be sent back to the Registrar of the Court of the Judicial Commissioner for necessary action. On 30-8-1949 a complaint was filed by the District Judge of Mahasu against the petitioners according to the said recommendation, and its cognizance was taken by the said Magistrate. The petitioners applied to him on 9-5-1951 that he had no jurisdiction to do so as the complaint was illegal. The Magistrate rejected the application on 24-7-1951. Against that order the petitioners first went up in revision to the Sessions Judge, and, on the latter dismissing the revision on 27-11-1951, they have now filed the present revision.
3. A brief survey of how this State came to be formed and of the relevant laws in force at various times is necessary for the disposal of this revision.
4. The Dominion of India was set up on 15-8-1947 by the Indian Independence Act, 1947 (10 and 11 Geo. VI, C. 30). Under this Act, His Majesty's Government in the United Kingdom ceased to have responsibility as respects the government of territories which comprised British India, and which were thenceforward to constitute the territories of the Dominion of India; the suzerainty of His Majesty over the Indian States and all treaties and agreements between them lapsed, leaving it optional with the Indian States to accede to either of the new Dominions; and until the passing of the constitution by the Constituent Assembly provision was made for the government of theDominion in accordance with the Government of India Act, 1935. On 24-12-1947 was passed the Extra-Provincial Jurisdiction Act (47 of 1947), empowering the Central Government to exercise in the areas outside the Provinces jurisdiction and powers acquired or that may be acquired by that Government by treaties, agreements etc., or delegate the jurisdiction to any officer or authority.
5. The twenty-one Punjab Hill States and their nine tributaries, having acceded to the Dominion of India, were formed into this State of Himachal Pradesh and the administration of the State was taken over by the Central Government through a Chief Commissioner by the passing of Himachal Pradesh (Administration) Order, 1948, on 15-4-1948. Under this Order existing laws were to continue until repealed or amended, and the Chief Commissioner was empowered to appoint judges and other functionaries, but, until that was done, the existing officers were to continue to function. One of such existing laws was the State Courts Act, 1943, whereunder the various States had created courts, including a Chief Judicial Officer (equivalent to a High Court in British India) and a Judicial Committee, hearing appeals in civil and criminal matters from the Chief Judicial Officer and making final recommendations to the Durbar concerned. The proviso to Paragraph 5 of the Himachal Pradesh (Administration) Order provided that all powers exercisable under the laws in force in Himachal Pradesh immediately before the commencement of the Order by the Government of the Durbar of a State shall be exercisable by the Chief Commissioner.
6. Four months later, i.e., on 15-8-1948, the Central Government passed the Himachal Pradesh (Courts) Order, 1948, in order to consolidate and amend the law relating to Courts in Himachal Pradesh. Under it, the Court of the Judicial Commissioner was established as the highest civil and criminal Court of appeal and revision for Himachal Pradesh. It was also provided by Paragraph 15 of the Order that in addition to the Court of the Judicial Commissioner and the Courts of Small Causes established under the Provincial Small CauseCourts Act, 1887, and the Courts establishedunder any other law for the time being in force, there shall also be the civil courts ofDistrict Judges and Subordinate Judges. This was an inroad on the functions of the existing officers referred to in the Himachal Pradesh(Administration) Order, and the inroad on the existing laws referred to in that Order came in the shape of the Himachal Pradesh (Application of Laws) Order, 1948, passed on 25-12-948, followed by the Merged States (Laws) Act, 1949, passed on 1-1-1950. The Himachal Pradesh (Repealing) Order, 1949, passed by the Central Government on 29-6-1949, repealed several enactments in force in the State, including the various State Courts Acts, 1943.
7. In exercise of the powers conferred by the proviso to Paragraph 5 of the Himachal Pradesh (Administration) Order, 1948, the Chief Commissioner referred to the Judicial Committee, amongst others, all appeals, revisions, references and applications, civil and criminal, pending in the Chief Judicial Officer's Court, Simla Hill States, under Section 35 of the State Courts Act, 1943, Simla Hill States.
8. The Constituent Assembly amended the Government of India Act, 1935, on 15-1-1949 by means of the Government of India (Amendment) Act, 1949, by insertion in the former Act of Section 290A which empowered the Governor-General by Order to direct the administration of any Indian State or group of States as a Chief Commissioner's Province. In exercise of this power, the Governor-General passed on 1-8-1949 the States Merger (Chief Commissioners' Provinces) Order, 1949, whereunder the States comprising Himachal Pradesh were to be administered as a Chief Commissioner's Province. Thus the Constituent Assembly endorsed the said Orders that had been passed, under the Extra-Provincial Jurisdiction Act, 1947, it being provided at the same time by the proviso to Article 4 of the 1949 Order just mentioned that in future no orders were to be made under the said 1947 Act. Finally, the Constituent Assembly enacted the Constitution on 26-11-1949, and, except for some of its provisions which came into force at once, it commenced on and from 26-1-1950, and the Indian Independence Act, 1947, and the Government of India Act, 1935, were repealed.
9. Against the above background, the arguments put forward on behalf of the petitioners may now be considered. One argument put forward was that on 24-5-1949, when the petitioners' appeal was dismissed by Dr. Bannerji as Judicial Committee, there could validly be no Judicial Committee. The contention was that before that Himachal Pradesh had already been formed and so had come under the jurisdiction of the Federal Court. But the forum of appeal depended on the substantive-right of appeal as it existed at the time the action was brought.--'Sitao Jhalia v. Emperor', AIR 1943 Nag 36. According to the law as it existed on the date when Amichand sued the petitioners the proper appellate authority was the Judicial Committee under the States Courts Act, 1943, and not the Federal Court.
10. Next it was contended that since the coming into force of the Himachal Pradesh, (Administration) Order, 1948, on 15-4-1948, the various Durbars came to end and therefore the Judicial Committee also came to end as it was attached to the Durbars, and therefore the aforesaid recommendation of the Judicial Committee dated 24-5-1949 and the Chief Commissioner's order on its basis dated 8-6-1949 were both ultra vires. With regard to the proviso to Paragraph 5 of the said Order it was argued that under it the Chief Commissioner did not acquire the prerogative which the Durbar had as the highest judicial authority to refer a case to the Judicial Committee under Section 35 of the States Courts Act, 1943. These arguments have, in my opinion, no force. Under Paragraph 5 of the Order existing laws continued in force, the said 1943 Act being one such law. And under the said proviso 'all powers exercisable under the said laws by the Government of the Durbar of the State' were exercisable by the Chief Commissioner. These words are comprehensive and therefore included the said power under Section 35 of the 1943 Act. That the delegation of powers by the Central Government to the Chief Commissioner (in exercise of which the latter made the reference under the said notification dated 14-1-1949) was competent under Section 3 of the Extra Provincial Jurisdiction Act, 1947, was not questioned before me.
11. Another argument on petitioners' behalf was that under Section 35 of the 1943 Act only a case 'decided by the Chief Judicial Officer' could be entrusted to the Judicial Committee,and therefore reference to the. Committee of cases 'pending in the Chief Judicial Officer's Court' under the notification of 14-1-1949 was unauthorised. This argument disregards the following words of Section 35 of the 1943 Act which come immediately after those quoted above, namely, 'or any Court subordinate to Chief Judicial Officer.' Therefore, taking the section as a whole, not only cases decided by the Chief Judicial Officer, but also those decided by any Court subordinate to Chief Judicial Officer (which would include cases, like the present, decided by a subordinate Court even though an appeal against the decision be pending in the Court of the Chief Judicial Officer), could be entrusted to the Judicial Committee.
12. It was also argued that Dr. Bannerji instead of himself converting the appeal into a Judicial Committee appeal on 17-5-1949 should have returned it for presentation to the proper Court. That would have only led to delay and harassment. It was not shown that by the procedure adopted the proceedings subsequent to 17-5-1949 were vitiated.
13. Lastly, it was argued by the learned counsel for the petitioners that the complaint filed by the District Judge of Mahasu on 30-8-1949 was incompetent. According to him 'the complaint in writing of such Court or of some other Court to which such Court is subordinate' in Section 195(1) (b), Criminal P. C., could be the District Judge of Koti or the Chief. Judicial Officer, which Courts, according to him, continued to exist in view of the provisions of Paragraph 15 of the Himachal Pradesh (Courts) Order, 1948. There is no doubt that the paragraph speaks of the establishment of the Courts of District Judges and Subordinate Judges in addition to 'the Courts established under any other law for the time being in force.' But that necessarily means Courts under existing law which did not come in conflict with the newly established Courts. The Court of the District Judge, Koti could not, and in fact did not, co-exist with the Court of the District Judge, Mahasu. The latter superseded the former. That being so, the 'such Court' referred to in Section 195(1)(b), Criminal P.C., was the Court of the District Judge, Mahasu which succeeded the Court of the District Judge, Koti. The complaint was therefore quite competent.
14. The application is rejected and the stayorder passed on 26-12-1951 and confirmed on17-1-1952 is vacated. Let the Magistrate concerned be informed accordingly.