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Mirza Mohd. Afzal Beg and ors. Vs. State of Jammu and Kashmir and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1960CriLJ62
AppellantMirza Mohd. Afzal Beg and ors.
RespondentState of Jammu and Kashmir and ors.
Cases Referred and Ekambara v. Alamelammal. A.I.R.
Excerpt:
- .....law' occurring in section 31(3) of the constitution act has the sums meaning as the words 'shall come to force.' so interpreter, section 31(3) of the constitution act emhodics a restriction on the power of the legislature to appoint a date of its own choice for coining into force of an act passed by it. this limitation forbids also the power of the legislature to make what is commonly known as conditional legislation, a typical example of which is section 1(2) of act xlii of 1956.when section 31(3) of the constitution act ha; expressly enjoined that a bill which is assented to by the sadar-i-riyasat and published in the government gazette shall come into force, the state legislature which has to function within the limits and under the limitations imposed by the constitution act cannot.....
Judgment:
ORDER

K.V. Gopalakrishnan Nair, J.

1. This is a revision petition. The petitioners are four of the persons against whom a preliminary inquiry is being held at Jammu by the committing Magistrate in respect of offences punishable Under Section 121-A, 120-B of the Ranbir P. C. read with Rule 32 of the Jammu and Kashmir Security Rules and the said Rule 32. The petitioners claimed before the committing Magistrate that the inquiry has to be held in accordance with the provisions of the Criminal Procedure Code (Amendment) Act, 1956 hereinafter referred to as Act XLII of 1956. This Act purported to make several amendments to the Criminal P, C. of 1989.

One of the important amendments relates to the insertion of a new Section, 207-A, in the Code of 1989. But the important point to note is that the new Section, 207-A, enacted by Act XLII of 1956 would have application only if Act XLII of 1956 is in force. The committing Magistrate by his order dated 7th February 1959 held that Act XLII of 1956 is not in force in the State. Sub-section (2) of Section 1 of that Act provides:-

It shall come into force on such date as the Government may by Notification in the Government Gazette, appoint.

It is common ground that no such Notification has yet been issued by the Government. The Magistrate therefore held that none m the provisions embodied in Act XLII of 1956 is in force and that, therefore, the accused persons cannot claim to be governed by those provisions. The argument advanced by the petitioners that Sub-section (2) of Section 1 of Act XLII of 1956 was void as repugnant to Section 31(3) of the Constitution Act of 1996 was repelled by the Magistrate. The result was that the Magistrate held that the Criminal P. C. of 1989 in its original form, that is to say without being, amended by Act XLII of 1956, was in force and governed the preliminary inquiry. The petitioners preferred a revision to the Sessions Judge at Jammu who by order dated1 28th February 1959 dismissed it. The petitioners have now come up in revision against the order of the Sessions Judge.

2. The first question that falls for determination is whether Act XLII of 1956 is in force. If we are to go by the provisions of Section 1(2) of that Act we have perforce to hold 'hat the Act is not in force because no date for its coming into force has yet been appointed by the Government as required by Section 1(2). But the matter does not rest there. Afzal Beg one of the petitioners who argued the case for himself and the . other petitioners, has strenuously contended that Sub-Section (2) of Section 1 of Act XLII of 1956 is void, being violative of the mandatory provisions of Sub-section (3) of Section 31 of the Constitution Act of 1996.

We have, therefore, to examine the validity of. this contention. The argument of the petitioners is this; the expression 'shall have the force of law' occurring in Section 31(3) of the Constitution Act has the sums meaning as the words 'shall come to force.' So interpreter, Section 31(3) of the Constitution Act emhodics a restriction on the power of the legislature to appoint a date of its own choice for coining into force of an Act passed by it. This limitation forbids also the power of the legislature to make what is commonly known as conditional legislation, a typical example of which is Section 1(2) of Act XLII of 1956.

When Section 31(3) of the Constitution Act ha; expressly enjoined that a Bill which is assented to by the Sadar-i-Riyasat and published in the Government Gazette shall come into force, the State legislature which has to function within the limits and under the limitations imposed by the Constitution Act cannot postpone the date of the coming into force of the law.

3. Let us now examine each step of this argument. The first link in the chain of reasoning forged by the petitioners is that the. words 'shall have the force of law' in' Section 31(3) of (he Constitution Act have precisely the same meaning as the expression 'shall come into force.' Giving the words of Section 31(3) their plain grammatical meaning, we find it difficult to accede to this argument The expression '.shall come into force' is one of the most well-tried and familiar expressions invariably employed by the legislature in statutes to indicate the coming into effective operation of the 1 ws.

One has only to glance through the Statute book of any country to find innumerable instances where the expression 'shall come into force' has been employed in Act after Act to indicate the coming into operation of the law. This is equally true of legislation in this State. A number of enactments passed in the State before the year 1996 have with invariable uniformity used the expression 'shall come into force' in their commencement clauses. Even the Constitution Act of 1996 has stated in Section 2 thereof that 'this Act shall come into force at once.' Sub-section (4) of Section 31 also uses this expression.

Why should the framers of the Constitution Act have adopted a different phraseology in Sub-section (3) of Section 31. if they intended by the use of_ that phraseology to convey what the expression 'shall come into force' does convey? We are unable to find any cogent answer to tills question. The only reasonable inference appears to us to be that the words 'shall have the force of law' were deliberately chosen and employed to express a meaning and import a significance very different from what is attributable to the words 'shall come into force.' A legislature does not employ expressions of such widely different nature to convey the same meaning.

The well-settled rule of interpretation is that when there is a change of language, a change of intention must be attributed. As we already stated, the words 'shall come into force' in the commencement clause of a statute signify the coming into effective operation of the law. On the other hand, the words, 'shall have the force of law' mean to our mind nothing more then 'shall become law' or 'shall acquire the character and quality or status, of law.' It cannot be doubted that a legislation, has first to become, a law before it can be brought into force.

It is equally clear that every legislation which has become law will no ipso fact crane into force as law. Apart from the familiar instances of conditional legislation, then. 1 are many Acts which have specified a date for their coming into operation. The insertion of a commencement clause in a statute appointing a date for the Act to come into actual operation is universally recognized to be a convenient legislative practice Craies in his Statute Law (5th ed.) at page 354 says as follows:-

It is common practice to specify in Acts of parliament the day on which the Act is to come into operation. There is often an 'appointed day' clause in an Article as for instance in the Local Government Act, 1888, Section 109'...the appointed day for the purpose of this Act shall he the first of April next or such other day earlier or later as the Local Government Board may appoint.' (As to the advantage of such a clause see Carr Delegated Legislation, PP. 10, 12).

The proposition that a legislation which has become a valid law does not by that mere fact come into operation immediately does not perhaps require any authority, We may, however, refer to the following passage from vol. 82 of Corpus Juris Secundum Section 399 relating to the time of coming into force of Statutes:-

When a bill has been passed by the legislature and signed by the governor, it becomes a law in the sense that it may not be changed or modified by the courts, and a statute may become a law on passage, even though by its own provisions its effective date is postponed. In this Connection it has been said that 'passage' of an Act is understood to refer to, the time when it is stamped with the requisite approval by the legislature and the chief executive, but that the going into effect of a bill refers to its becoming actually operative as existing law. It has been said that a statute may have a potential existence, although it will not go into operation until a future time and that until the time arrives when it is to take effect and be in force, a statute which has been passed by both houses of the legislature and approved by the executive has no force whatever for any purpose. Before that time no rights may be acquired under it and no one is bound to regulate his conduct according to its terms and all acts purporting to have been done under it prior to that time are void.

4. The effect of the expression 'shall have the force of law' occurring in Section 31(3) of the Constitution Act is. therefore, nothing more then that the Bill shall be enacted into law or become law. But the question of actually bringing it into force as law is an entirely different matter and is not provided for in Section 31(3).

5. The next step in the argument that Section 3 (3) embodies a constitutional limitation on the power of the legislature to appoint a date for the coining into force of an Act is closely bound up with the meaning of the words 'shall have tie force of law,' As we have already come to a conclusion against the petitioners regarding the true meaning of these words, the argument relating to the alleged constitutional prohibition embodied in Section 31(3) perhaps loses much of its validity. However as the argument has been urged with considerable vigour and tenacity, we consider it proper to go into it in some detail. Further, even if the petitioners establish that the words 'shall have the force of law' mean nothing more and nothing less then 'shall come into force' the obstacle in their way will not yet be removed for Sub-section (2) of Section 1 of Act XLII of 1956 would then come into force, and being a specific Section relating to the corning into force of the Act may have to be given effect, This aspect of the matter also seems to have actuated the petitioners to urge vigorously that Section 31(3) of the Constitution Act forbids the enactment of a provision like Section l(2j of Act XLII of 1956.

6. The curtailment of legislative powers contended for by the petitioners would be expressed in a Constitution Act clearly, precisely and prominently and not covertly, obscurely and in wrong phraseology. This test. Section 31(3) of the Consecution Act does not satisfy. The natural and ordinary meaning of the words employed in Section 31(3) does not accord with the claim made by the petitioners; nor does the form in which that provision is cast support the petitioners' argument; nor is the setting of Section 31(3) in tune with the argument put forward. In fact the words employed, the form adopted, and the context of the provision in question clearly militate against the argument of the petitioners. Unless we do outrage to the plain words o the Section, totally ignore the form in which the Section is cast, give the go-by to well-established canons of construction and even embark upon virtually re-writing the Section itself in the guise of interpretation, we cannot accept the petitioners' contention, and we cannot do any of these things. Furthermore, we are not satisfied from a read- A ing of the Constitution Act as a whole that the framers of the Act intended to deprive the State legislature of its natural and, if we may say so, inherent right to enact an express provision for the coming into force of the laws passed by it. This is especially so when we consider the past legislative practice which obtained not only in this State but all over the country. If in spite of such long legislative practice and usage the Constitution Act intended to deprive the State legislature of the power, one would expect the Act to have said so in the most unmistakable terms. We are unable to find any such unequivocal provision in the Constitution Act.

7. As we stated before, the intention of the legislature is to be gathered from the words employed. Giving our careful consideration to the words of Section 31(3), we are unable to agree the the words of that Section imply any constitutional prohibition of the kind contended for by the petitioners. We may also notice that in a number of statutes passed from time to time by the State legislature after the coming into force of the Constitution Act of 1996, an express commencement clause has been enacted so as to bring into force the Acts on a future date or to entrust the task of appointing such a date to an outside authority like the Government.

We cannot lightly assume that the State legislature in passing these enactments exceeded their powers or were ignorant of their powers. The fair inference, on the other hand, seems to be that the legislature did understand their powers and functions and enacted the commencement clause on the lines referred to above, because they were fully aware that there was nothing in the Constitution Act of 1.996 which forbade them to do so. The presumption if anything, is in favour of the legislature understanding its powers and functions. The law also presumes that a statute passed by a legislature is constitutionally valid, and the onus of showing the contrary is on the person who asserts it. The petitioners in the present case have not discharged their burden of establishing that Sub-section (2) of Section I. of Act XLII of 1956 is unconstitutional and void.

8. We may also notice here that when two contending interpretations of equal force and plausibility are placed on a statutory provision, that which saves an Act and preserves it as valid is to be preferred to that which seeks to destroy it by declaring it void.

9. On considering all the arguments pro and con. we are definitely of the opinion that Sub-section (31 of Section 31 which forms part of a Section plainly devoted to legislative procedure and the words of which do not bear the interpretation, sought to be put upon them by the petitioners and which is couched in a form altogether inappropriate to express the intention contended for by the petitioners, does not embody a restriction on the powers of the legislature to appoint a date of its own choice for the coming into force of an Act passed by it.

10. Before concluding, we may notice another argument advanced by the petitioners that if the legislature merely intended that a BUI assented to and duly published should become law. they need not have said that it shall become an Act as well as that it shall have the force of law. This argument is far too adequate to construe (he words as meaning something other then what their plain grammatical meaning connotes. It may well be that the legislature wanted to make it clear that a Bill which has passed into law shall have the nomenclature of 'Act'. This we think they were justified in saying because till then the laws of the State were designated 'Regulations'. A reference to Sub-section (4) of Section 31 of the Constitution Act reinforces tills inference. So, the legislature wanted to convey two things by Section 31(3): (1) that a Bill after being published in the Government Gazette after being assented to by the Sadar-i-Riyasat shall become law and (2) that it shall be known by the name 'Act' instead of 'Regulation'

11. The petitioners did not contend that Section 1(2) of Act XLII of 1956 is bad as transgressing the limits of permissible delegation of legislative powers. If that argument had been put forward, the answer would have been easy that the provision is valid, being conditional legislation (Vide Empress v. Burah ILR 4 Cal 172 (PC) and Inder Singh v State of Rajasthan (S) : [1957]1SCR605 .

12. In view of the foregoing, we hold that Section 1(2) of Act XLII of 1956 is valid and that Act XLII of 1956 has not yet come mto force.

13. The above finding is perhaps sufficient to dispose of the entire case. The argument on the side of the petitioners relating to the scope of Section 207-A which is enacted by Act XLII of 1956 does not arise for consideration because Act XI. II of 1956 is not itself in force. As the Criminal Procedure Code 1989 without its being amended by Act XLII of 1956 is now in force, the committing Magistrate was right in holding that Section 208 of the Code now in force applied to the case.

14. The only remaining point that has to be noticed is that the committing Magistrate on 11-6-58 had passed an order directing the prosecution to produce all the 'relevant documents pertaining to the case as soon as possible.' It is also on re' cord that the junior counsel who appeared for the prosecution that time told the court that in view of considerable number of documents which required to be sifted and sorted, it will take about a month's time to be ready to bring; the relevant document? to court. It is well to note that none of the accused persons at that time raised the express contention that Act XLII of 1956 was in force and that Section 207-A was applicable to them.

Subsequently, the question of the production of documents was again raised by the accused per. sons by a petition dated 9-7-58. After hearing both sides the committing Magistrate passed an order on 24-7-58 upholding the contention of the prosecution that they are not bound to produce the documents at that stage and that when they produced and proved them the defence will be entitled to examine them. The Magistrate said in his order that

the defence shall of course have to be afforded reasonable facilities to examine documents when produced and proved on behalf of the prosecution.

The same point was again urged on behalf of the accused before the Magistrate on 24-10-58 by Mr. R. L. Anand. counsel for one of the accused persons. The Magistrate again negatived the contention of Mr. Anand in a somewhat elaborate order. Then came the application of the petitioners out of which this revision has arisen. The Magistrate once again negatived the claim of the accused persons regarding the production of documents by the prosecution. The argument advanced before us by the petitioners is that the Magistrate was con-eluded by his first order dated 11-6-58 and that he had no right to pass a different order subsequently.

The petitioners, therefore, ask that the first order of the Magistrate dated 11-6-58 should be directed to be implemented. We have already come to the conclusion that the order of the Magistrate that Act XLII of 1956 is not in force is correct. The case of the petitioners for the production of documents was based on Section 207-A which was enacted by Act XLII of 1956. It is dear that the petitioners cannot invoke that provision which is not in force. Therefore, the successive orders passed by the Magistrate subsequent to 11-6-5S were correct.

It appears that the order passed on 11-6-58 was erroneous and was made without: a correct appreciation of the provisions of law. No specific claim based on Section 207-A enacted by Act XLII of 1956 was raised before the Magistrate in the proceedings which led to the order of 11-6-58. It is, however, not necessary to go into the reason why such an incorrect order came to be passed by the Magistrate on 11-6-58. The fact remains his subsequent orders are correct and we see no reason to ignore his correct orders and direct that the incorrect order must be given effect to.

15. We do not agree that the Magistrate had no right to come to a different conclusion at a later stage on an interlocutory matter like this. The order of the Magistrate dated 11-6-58 is not a judgment within the meaning of Section 369 of the Code. It is, therefore, not valid to contend that he was absolutely bound by that order and had no right to pass a different order unless his earlier order was set aside by a superior court in appropriate proceedings. The principle applicable to judgment does not apply to interlocutory orders and the Magistrate was entitled to pass a different order at a later stage.

He was entitled to reconsider the position on another application, on the basis of the arguments advanced on ether side and come to a different conclusion, as he has done in the present case. We consider that the petitioners have n0 right to insist that the erroneous order dated 11-6-58 must be implemented. If any authority for this position is needed, we may cite the decision of the Calcutta High Court in the matter of Abdool Subhan ILR 8 Cal 63. Even a more clear decision is to be found in Lalit Mohan v. Noni Lal A.I.R. 1923 Cal 662.

We are in respectful agreement with these decisions and we hold 'hat it will be quite wrong in a case like this to direct that the erroneous prior interlocutory order of the Magistrate should be given effect to, ignoring the subsequent correct orders. None of the authorities cited on the side of the petitioners related to interlocutory orders. Every one of them, on the other hand, related to judgments and final orders. See for instance, Narayanaswami v. Narayya A.I.R. 1942 Mad 240 : Mohd Mustaquim v. Sukhraj A.I.R. 19415 Oudh 52 and Ekambara v. Alamelammal. A.I.R. 1930 Mad 1001.

16. In view of what we have stated above, this revision fails and is dismissed.

J.N. Wazir C.J.

17. I agree and have nothing to add.


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