George Chadayammuri v. State — 1951 DIGILAW 150 (KER)

Judgment :- Koshi, J. These petitions were referred to a Full Bench for decision by a Division Bench consisting of two of us (Koshi and Govinda Pillai, JJ.), as per the following order dated 27th September 1951. Order of Reference Koshi, J. 1. One George Chadayammuri, Accused No. 10 in C.C. No. 75 of 1950 on the file of the Special First Class Magistrate, Trichur is the petitioner in the Original Petition as also in the Criminal Revision Petition. Both petitions are directed towards the same end namely, the quashing of the charge which the learned Special First Class Magistrate of Trichur framed against the petitioner on 28th November 1950 under S.4(1) and (2), Cochin Criminal Law Amendment Act (Act 27 of 1124). In exercise of the powers conferred on them by S.3 of the said Act as continued in force by the Travancore Cochin Administration and Application of Laws Act (Act 6 of 1125) the Government by a Notification published in a Gazette Extraordinary dated 2nd January 1950 declared the Cochin Communist Party to be an unlawful association within the meaning of the said Act. The prosecution case against the petitioner and the other accused in the case is that even after the said Notification they continued to be active members of the proscribed Communist Party propagating its faith and teachings, that on 26th March 1950 a meeting of the said party was held under the leadership of the petitioner and another in furtherance of its unlawful objects and activities and that by these acts all the accused persons contravened S.4(1) and (2) of the Cochin Criminal Law Amendment Act 27 of 1124. The main ground on which the charge is sought to be quashed is that after the commencement of the Constitution of India, S. 3 of Cochin Criminal Law Amendment Act became void as the said section was inconsistent with and contravened the fundamental rights guaranteed to the citizens of India - Arts. 14 and 19 of the Constitution. A subsidiary ground mentioned is that the Notification declaring the Cochin Communist Party an unlawful association was not in force when the law was put in motion against the accused persons in the case and that the case was therefore started without the sanction of the requisite Notification. 2. 14 and 19 of the Constitution. A subsidiary ground mentioned is that the Notification declaring the Cochin Communist Party an unlawful association was not in force when the law was put in motion against the accused persons in the case and that the case was therefore started without the sanction of the requisite Notification. 2. Though, for reasons which we shall presently state, after mature deliberation we have come to the conclusion that we should place these petitions for decision by a Full Bench of this Court, we think it necessary to point out that in our opinion there is no substance in the subsidiary point raised. The facts necessary for a proper understanding of that point are as follows:- Mention has already been made that the main act complained of in the case, namely the holding of a meeting of the Cochin Communist Party is one that took place on 26th March 1950. The Notification was admittedly in force when the meeting was held. But action thereunder was taken against the accused only on 2nd April 1950. That was the date when the first information report was registered or sent to the Court. Meanwhile on 30th March 1950 the Cochin Criminal Law Amendment Act 27 of 1124 was repealed by the Travancore Cochin Public Safety Measures Act (Act 5 of 1950). The latter Act is really a repealing and re-enacting measure. In fact it is a consolidated piece of legislation intended to replace several enactments passed by the Travancore and Cochin Legislatures. The argument that the Notification issued on 2nd January 1950, under the Cochin Criminal Law Amendment Act 27 of 1124 declaring among others the Cochin Communist Party an unlawful association was not in force when the case was registered is based on the ground that the "repeal and saving" section of the new Act did not keep alive or seek to continue in force a Notification issued under any of the repealed Acts but only orders made under such Acts. S. 73(2), Travancore-Cochin Public Safety Measures Act which contains the relevant provision is in these terms: "All orders made or deemed to be made under the enactments referred to in sub-s. (1) and in force immediately prior to the commencement of this Act shall continue in force and be deemed to have been made and shall have effect as if they have been made under this Act, and all appointments made, licenses or permits granted and directions issued under any such order and in force immediately before such commencement shall likewise continue in force and be deemed to be made, granted or issued in pursuance of this Act." 3. It was pointed out on behalf of the petitioner that the Cochin Criminal Law Amendment Act referred both to Notifications and Orders and that in view thereof the omission of the term Notification in S. 73(2) was significant. The petitioner's contention is that with the enactment on 30th March 1950 or the Public Safety Measures Act the Notification of 2nd January 1950 had ceased to be in force and that the whole proceedings should therefore be quashed as founded on a defunct Notification. The learned Advocate General who appeared before us on behalf of the State urged several grounds to show that the contention was without substance. We however think it necessary to refer only to one of those grounds. According to the Advocate General the omission of the term Notification from S. 73(2) is no moment. Under S. 23, Travancore-Cochin Interpretation and General Clauses Act 1125, when an Act is repealed and re-enacted with or without modification, a notification issued under the repealed Act, shall so far as it is not inconsistent with the provisions re-enacted continue in force and be deemed to have been made under the provision so re-enacted unless and until it is superseded by any notification under the provisions so re-enacted. In view of S. 23, Travancore-Cochin Interpretation and General Clauses Act, S. 73(2) of Public Safety Measures Act, is perhaps a superfluity. We cannot however accede to the suggestion made on behalf of the petitioner that in view of S. 73(2), the provision in the General Clauses Act (to use a short term) should not be invoked here. In view of S. 23, Travancore-Cochin Interpretation and General Clauses Act, S. 73(2) of Public Safety Measures Act, is perhaps a superfluity. We cannot however accede to the suggestion made on behalf of the petitioner that in view of S. 73(2), the provision in the General Clauses Act (to use a short term) should not be invoked here. In our opinion the point mentioned by the Advocate General is sound and that is sufficient to meet the argument that the prosecution was started under a defunct Notification. 4. S.73(3)(a), Public Safety Measures Act provides inter alia that the repeal of the enactments referred to in sub-section (which includes the Cochin Criminal Law Amendment Act, 27 of 1124 also) shall not affect any liability incurred under any enactment so repealed and in Cl. (c) thereof among other things it is provided that in respect of a liability incurred under a repealed Act, an investigation or a legal proceeding may be instituted as if the new Act, has not been passed. By transgressing the law as enacted in S. 4(1) and (2), Cochin Criminal Law Amendment Act, XXVII of 1124, the accused persons had incurred a liability in the sense of S. 73(3)(a), Public Safety Measures Act and Cl. (c) expressly authorises the institution of an investigation or a legal proceeding in respect thereof notwithstanding the repeal of the law under which the liability was incurred. These considerations are in our opinion sufficient to dispose of the subsidiary point. 5. The main point is whether S. 3, Cochin Criminal Law Amendment Act, 27 of 1124 was rendered void by reason of Art. 13(1) of the Constitution. Before the Constitution, it was certainly valid law, as there were no constitutional limitations on the legislative sovereignity of the Cochin Legislature. The immunity from judicial review has become a thing of the past with the commencement of the Constitution and Courts cannot countenance any legislative infringement of a fundamental right whether that law was in existence at the commencement of the Constitution or was brought into existence subsequent thereto unless the infringement keeps itself within the bounds of permissible legislation. S. 2(vi) Cochin Criminal Law Amendment Act, 27 of 1124 refers to two kinds of classes of unlawful associations. The test for one class is whether the association is one indulging in activities referred to in Cl. (a) thereof. S. 2(vi) Cochin Criminal Law Amendment Act, 27 of 1124 refers to two kinds of classes of unlawful associations. The test for one class is whether the association is one indulging in activities referred to in Cl. (a) thereof. The other class is that declared to be unlawful by Government under powers conferred on them by S. 3. That Section specifies the grounds on which Government could declare an association unlawful. According to the provisions of the impugned Act that declaration is final and cannot be challenged in a prosecution started in respect of activities in violation thereof. The only safeguard is that under S. 31 of the Act, under which the aggrieved party can within two months from the date of the declaration move the High Court to set it aside. The main question in these petitions is whether this safeguard is sufficient to bring the impugned provisions within the limits of permissible legislation. The petitioner's learned Counsel relied on for purposes of his argument mostly on the recent Full Bench decision of the Madras High Court in V.G. Row v. State of Madras (AIR 1951 Mad. 147) where both S. 16, Indian Criminal Law Amendment Act (14 of 1908) and the corresponding provision S. 15(2)(b), Indian Criminal Law Amendment (Madras) Act (Act 11 of 1950) were declared void as offending Art. 19(1)(c) and (4) of the Constitution. The majority among the learned judges repelled the contention that the Madras Act offended Art. 14 as well though one of the learned judges accepted that argument also. As indicated earlier as we are not proceeding to give a decision on these petitions ourselves we do not consider it necessary to refer to the various grounds urged before us on behalf on of the petitioner on the counter arguments the learned Advocate General adduced on behalf of the State. We shall straight way proceed to state the reasons which weigh with us in referring the case for decision by a Full Bench. 6. Several of the objectionable features which induced the learned judges of the Madras High Court to hold that the Indian Criminal Law Amendment (Madras) Act, 11 of 1950 is void to the extent it authorises Government to declare certain associations unlawful are present in the case of the Cochin Criminal Law Amendment Act, 27 of 1124 also. 6. Several of the objectionable features which induced the learned judges of the Madras High Court to hold that the Indian Criminal Law Amendment (Madras) Act, 11 of 1950 is void to the extent it authorises Government to declare certain associations unlawful are present in the case of the Cochin Criminal Law Amendment Act, 27 of 1124 also. The Advocate General's attempt was to make out that the Madras decision cannot apply to the disposal of the petitions before us as the Cochin enactment contained a provision for judicial review of the Government's declaration of an association as unlawful. It was contended that in that respect the Cochin legislation was a great improvement on its counterparts elsewhere. The Criminal Law Amendment (Madras) Act,1950, contains no provision for a judicial review of the declaration but it makes provision for reference to an Advisory Body constituted under the Act. The Advocate General's argument that the Cochin Act, was a great improvement on the Criminal Law Amendment Acts elsewhere was sought to be met by the petitioner's learned Counsel by stating that the absence of a provision for personal service of the notice of the declaration on the members or on the office bearers of the association declared unlawful or by leaving a copy of the declaration at the office of the association or by publication otherwise than by Gazette Notification also and the imposition of a limit to apply for a judicial review made the safeguard embodied in S. 31 almost illusory. That no doubt is a matter for serious consideration. Assuming the Advocate General's argument is worthy of acceptance we are afraid by distinguishing the Madras case from the case before us now in that manner we will be indirectly or impliedly branding as unconstitutional the corresponding provision in the Travancore-Cochin Public Safety Measures Act (S. 23) entitling the Government to declare an association as an unlawful association within the meaning of the said Act. 7. The new Act, that is the Travancore-Cochin Public Safety Measures Act, V of 1950, contains no provision for a judicial review of the declaration nor does it provide for a reference to any Advisory Board. S. 23 of the said Act is a reproduction of S.16, Indian Criminal Law Amendment Act, 14 of 1908 with words added to widen its scope and amplitude. S. 23 of the said Act is a reproduction of S.16, Indian Criminal Law Amendment Act, 14 of 1908 with words added to widen its scope and amplitude. S.16 of the Indian Criminal Law Amendment Act, 14 of 1908 has with one voice been condemned by all the three learned judges constituting the Full Bench in AIR 1951 Mad. 147 as absolutely void. Rajamannar, C.J. said: "One could not find a better illustration of the exercise of naked arbitrary power than the original Criminal Law Amendment Act. The Government had only to issue a Notification on a subjective satisfaction that an association was unlawful and it was infallible and conclusive; it is impossible to say that the restriction imposed by the original Act, is in any sense reasonable within the meaning of Art. 19(4) of the Constitution". 8. Words similar, if not more severe, have been used by two other learned Judges, Satyanarayana Rao and Viswanatha Sastri, JJ. in condemning S. 16, Indian Criminal Law Amendment Act (14 of 1908). When the provision in our present law is equally, if not more, stringent than that existed in the original Indian Criminal Law Amendment Act, in India, the attempt to sustain the prosecution against the petitioner and his co-accused by distinguishing the Madras case, even if successful, we are afraid is sure to give rise to serious and far-reaching consequences. At one stage in the argument a point was raised that S. 23, Travancore-Cochin Public Safety Measures Act, V of 1950 is void but it was later conceded that the point did not directly arise in this case. 9. However as the case raises important and noval questions and even a decision in favour of the State distinguishing the Madras case will inevitably involve implied or indirect condemnation of an existing law we think the proper course for us will be to refer both the petitions for an authoritative decision by a Full Bench of this Court and we order accordingly. The papers will immediately be placed before His Lordship the Chief Justice for necessary directions. 10. The papers will immediately be placed before His Lordship the Chief Justice for necessary directions. 10. The Full Bench as constituted now first sat to hear these petitions on 11th October 1951 when the learned Advocate General applied further adjournment for a fortnight on the ground that in the light of the reference order, and judicial pronouncements elsewhere on legislations similar to those directly or indirectly impugned in these proceedings, Government intended to amend the Travancore-Cochin Public Safety Measures Act 1950 and that in view thereof a postponement of the hearing of the petitions was from the point of view of the State very desirable. The petitioner's learned Counsel strenuously opposed the motion but ultimately we granted the adjournment. The discussion that followed the motion for adjournment did not rule out the possibility of the withdrawal of the prosecution giving rise to these petitions. Exigencies of Court work did not permit this Bench to meet again before 13th November 1951. Meanwhile, on 24th October 1951 His Highness the Rajapramukh promulgated the Travancore-Cochin Safety Measures (Amendment) Ordinance 1951. When the hearing was resumed on 13th November 1951 the learned Advocate General invited our attention to the said Ordinance and indicated that he will be contending that the unconstitutional nature, if any, of the legislation impugned before us stood cured by it. In answer to a query from the Bench we were informed that the State had no idea of withdrawing the prosecution. The petitioner's Counsel then commenced his arguments but before it proceeded beyond the preliminary stage the Advocate General intimated to the Court that he was withdrawing his earlier submission that the new Ordinance will have to be taken into account in the decision of these petitions and that he will be confining his arguments to show that S. 3, Cochin Criminal Law Amendment Act, 27 1124, under which the Notification forming the basis of the prosecution in question was issued was not rendered void by Art. 13(1) of the Constitution. Art. 20(1) of the Constitution states 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, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. As the charge sought to the quashed relates to events that happened long before the Ordinance was promulgated the course adopted by the learned Advocate General, in withdrawing his earlier submission was in our opinion, proper. Both sides are hence agreed that the decision of these petitions must depend upon whether the Constitution has rendered S.3, Cochin Criminal Law Amendment Act void on the ground that it was inconsistent with the provisions in Part III of the Constitution guaranteeing certain fundamental rights. That in fact, as the reference order indicates, is the central point in the case. Before we proceed to discuss that question certain other points mentioned by the Advocate General have to be disposed of. 11. In dealing with these points it is necessary to set out the meaning of the term "unlawful association" as given in S. 2(vi), Cochin Criminal Law Amendment Act, S.3 which confers power on Government to declare an association unlawful and S. 4, the penal provision under which the prosecution against the petitioner and other accused persons in the case has been launched. "S.2(vi) "unlawful association" means any association (a) which encourages or aids persons to commit acts of violence or intimidation or of which the members habitually commit such acts, or (b) which has been declared to be unlawful by Government under the power hereby conferred". "S.3. If Government are of opinion that any association interferes or has for its object interference with the administration of the law or with the maintenance of law and order, or that it constitutes a danger to the public peace, Government may, by notification in the Cochin Government Gazette declare such association to be unlawful". "S.4(1). Whoever is a member of an unlawful association or takes part in meetings of any such association, or contributes or receives or solicits any contribution for the purpose of any such association, or in any way assists the operations of any such association shall be punished with imprisonment for a term which may extend to six months or with fine, or with both. (2) Whoever manages or assists in the management of an unlawful association; or promotes or assists in promoting a meeting of any such association, or of any members thereof as such members, shall be punished with imprisonment for a term which may extend to 3 years, or with fine or with both. (2) Whoever manages or assists in the management of an unlawful association; or promotes or assists in promoting a meeting of any such association, or of any members thereof as such members, shall be punished with imprisonment for a term which may extend to 3 years, or with fine or with both. (3) An offence under sub-s. (1) shall, notwithstanding anything contained in the Code of Criminal Procedure, 2 of 1086, be non-bailable". According to the Advocate General the charge framed by the Court comprises two counts. (i) Membership of the Cochin Communist Party (declared unlawful prior to 26th January 1950) i.e. before the Constitution came into force; and (ii) Membership of the said party thereafter and on the date the meeting complained of took place viz. 26th March 1950 and the activities connected with convening and conducting that meeting. 12. On the above analysis of the charge the Advocate General argued that the charge in respect of count (1) cannot be affected by the Constitution and that assuming S. 3 of the impugned Act was rendered void by Art. 13(i) of the Constitution a prosecution in respect of an offence committed before 26th January 1950 can still be proceeded with. The recent decision of the Supreme Court of India in Kesavan Madhava Menon v. State of Bombay AIR 1951 SC 128 and the Bombay Full Bench decision in Kesava Madhava Menon AIR 1951 Born. 188 which gave rise to it were relied upon in support of the argument. The petitioner's learned Counsel did not dispute that the argument must prevail if the charge included in its scope also count (1) above as mentioned by the Advocate General. He however strenuously contended that the charge was in respect of the membership of the prescribed association on the date of the alleged meeting and the part the accused took in it. According to him it would at best include also an accusation regarding membership of the said association thereafter but not more. It was argued that the language of the charge did not admit of the construction the learned Advocate General sought to put upon it that it also related to membership before 26th January 1950. That date is not mentioned in the charge and our own reading of the document is that it does not include a charge for membership of the Cochin Communist Party prior to 26th January 1950. That date is not mentioned in the charge and our own reading of the document is that it does not include a charge for membership of the Cochin Communist Party prior to 26th January 1950. Nothing was in our opinion further from the mind of the Court which framed the charge than to include such a count also within its scope. Probably nobody ever thought of it before the Advocate General mentioned it before this Bench. To satisfy ourselves whether the Court could have meant to include membership prior to 26th January 1950 also within the ambit of the charge we carefully examined not only that document but the entire records of the case including the charge-sheet filed by the police as also the evidence recorded by the Magistrate. Clearly the prosecution was concentrating its attention on the meeting of 26th January 1950 and the activities of the accused in connection therewith. We are therefore unable to accede to the argument that the charge as framed by the Magistrate includes a count relating to the membership of the proscribed association before the Constitution came into force. In view of this conclusion the further argument that our extraordinary powers under Art. 226 should not be invoked to quash the charge in part while we cannot touch the other part does not arise for consideration. 13. A further point raised by the Advocate General was that the declaration under S.3, Cochin Criminal Law Amendment Act was not final and that it was justiceable even apart from S. 31 of the Act. Ss. 31 to 35 contain provisions for judicial review of orders made under S. 3 and S. 31 so far as is relevant for our present purpose is in these terms: "Any person aggrieved by an order passed by Government under S. 3 declaring an association unlawful may, within two months from the date of such order apply to the High Court to set aside such order and the High Court shall decide. (a) Whether the association declared unlawful has interfered with or has for its object interference with the administration of law or with the maintenance of law and order or whether it constitutes a danger to the public peace or not; or (b)" 14. S.32 enacts that every application under S. 31 shall be heard and determined by a Division Court of three Judges. S.32 enacts that every application under S. 31 shall be heard and determined by a Division Court of three Judges. S. 33(1) so far as is relevant provides that if it appears to the Division Courts on an application under S. 31 that the association in respect of which an order under S. 3 has been passed has not interfered with or has not for its object interference with the administration of law or with the maintenance of law and order or that it did not constitute a danger to the public peace, shall set aside that order. Sub-s. 2 enacts that where there is a difference of opinion among the judges forming the Division Court, the decision shall be in accordance with the opinion of the majority of those judges and sub-s. (3) is to the effect that where there is no such majority which concurs in setting aside the order in question, the order shall stand. S. 34 lays down certain special rules of evidence when the application under S.31 is with reference to any newspaper (provisions relating to such applications have been omitted in S. 31 and 33 as set out above) and S. 35 relates to the procedure in the High Court with respect to applications under S. 31. That section reads: "The High Court shall, as soon as conveniently may be, frame rules to regulate the procedure in the case of application made to it under S. 31, the amount of the costs thereof and the execution of orders passed thereon and until such rules are framed the practice of such Court in proceedings other than suits and appeals shall apply, so far as may be practicable, to such applications". 15. The reference order makes it clear that the arguments before the Division Bench proceeded on the basis that subject to the order of the High Court on application, if any, made under S. 31 a declaration under S. 3 was final and conclusive for all purposes and that a person prosecuted under S. 4 for being a member of an association declared to be unlawful or for other activities in connection therewith could question its validity. To make an order under S. 3 is an executive act and it cannot be canvassed directly or indirectly in Court except as the law makes provision in that behalf. Apart from the language of S. 3, sub-ss. To make an order under S. 3 is an executive act and it cannot be canvassed directly or indirectly in Court except as the law makes provision in that behalf. Apart from the language of S. 3, sub-ss. 2 and 3 of S. 33 also make that point clear. To hold otherwise would be to hold that even when the High Court refuses to set aside the order a subordinate Criminal Court can examine its validity if and when a prosecution happens to be launched under S. 4. The omission of S. 3 from S. 40 is in our opinion not relevant to the point. The finality of an order under S. 3 is made clear by its own language and also by sub-ss. 2 and 3 of S. 33. There was therefore no need to include S. 3 in S. 40. S. 3, Cochin Criminal Law Amendment Act is in the same terms as S. 16, Criminal Law Amendment Act 14 of 1908 and with reference to orders passed under the said S.16 it is regarded as settled law that such orders are final and conclusive and not justiciable. 16. Though we think it necessary to refer to authorities bearing on the point we shall just mention that in the case referred to in the order of reference AIR 1951 Mad. 147, it was assumed by all concerned, that the order was conclusive and final. We have already mentioned that S. 40, Cochin Criminal Law Amendment Act does not justify an inference to the contrary and that provision was the sole distinguishing feature the learned Advocate General relied upon in support of his position that an order under S. 3, Cochin Criminal Law Amendment Act is open to judicial review even otherwise than as expressly provided by the enactment. 17. In this context mention may also be made that with reference to orders made under similar enactments in other States the view uniformly held by Courts is that they are not open to challenge on the merits. Among the cases we have in mind mention may be made of:- (1) Romesh Thappar v. State of Madras (AIR 1950 SC 124) ; (2) Brij Bhushan v. State of Delhi (AIR 1950 SC 129); (3) N.B. Khare v. State of Delhi (AIR 1950 SC 211); (4) Brajnandan Sharma v. State of Bihar (AIR 1950 Pat. Among the cases we have in mind mention may be made of:- (1) Romesh Thappar v. State of Madras (AIR 1950 SC 124) ; (2) Brij Bhushan v. State of Delhi (AIR 1950 SC 129); (3) N.B. Khare v. State of Delhi (AIR 1950 SC 211); (4) Brajnandan Sharma v. State of Bihar (AIR 1950 Pat. 322); (5) Jeshingbhai Ishwarlal v. Emperor (AIR 1950 Born. 363 FB) (6) Sunil Kumar Bose v. West Bengal Government (AIR 1950 Cal. 274). The first case related to an order under the Madras Maintenance of Public Order Act 1949, the second and third cases to orders under the East Punjab Public Safety Act, 1949, the fourth case to an order under the Bihar Maintenance of Public Safety Act, 1949, the fifth case to an order under the Bombay Public Security Measures Act, 1947, and the sixth case to an order under the Bengal Criminal Law Amendment Act, VI of 1930. We wish we were able to accept the Advocate General's point of view regarding the nature of an order under S. 3, Cochin Criminal Law Amendment Act. Were we able to, that would have knocked the bottom out of the case the petitioner was attempting to make out. The whole edifice of his case was built on the argument that an order under S. 3 is not impugnable in prosecutions under S. 4 or under other penal provisions of the Act. If the concession with regard to it is acceptable the question whether we should seek to invoke the extra ordinary jurisdiction vested in us under Art.226 would become more prominent than otherwise. For reasons already stated we cannot however found our order on the view that the validity of the order can be examined by the ordinary Criminal Court trying case for contravention thereof. We have therefore necessarily to examine the question whether S. 3, Cochin Criminal Law Amendment Act which invests Government with authority to declare an association unlawful on its subjective satisfaction that grounds mentioned in the Section for taking such action exist in a given case has become void under the Constitution. 18. The contention of the Petitioner's learned Counsel on the main point in the case was that S. 3, Criminal Law Amendment Act offended both Art. 14 and Art.19(1)(c) of the Constitution and that therefore, the Section as also the Notification issued thereunder had become void. 18. The contention of the Petitioner's learned Counsel on the main point in the case was that S. 3, Criminal Law Amendment Act offended both Art. 14 and Art.19(1)(c) of the Constitution and that therefore, the Section as also the Notification issued thereunder had become void. The prosecution instituted for any transgression of the Notification was according to the learned Counsel for the petitioner unsustainable. Though Arts. 14 and 19 were both said to have been offended, the gravamen of the attack was that the Cochin Criminal Law Amendment Act, particularly S. 3 was a direct inroad on the freedom to form associations or unions recognised by Art. 19(1)(c) and that the infringement had overstepped the limits of permissible legislation sanctioned by sub-cl. (4) of Art. 19; that S. 3 of the impugned Act enacts a provision directly affecting one of the 7 fundamental rights guaranteed by Art. 19(1) viz, that recognised by Art. 19(1)(c) to form associations or unions admits of no doubt. We have therefore to examine whether the saving provision in Art. 19(4) would prevent it from becoming void is in these terms: "Nothing in sub-Cl. (c) of the said Clause shall affect the operation of any existing Law in so far as it imposes, or prevent the State from making any Law imposing, in the interests of public order or morality, reasonable restrictions on the exercise of the right conferred by the said Sub-Clause". 19. Under it the restrictions should be reasonable and they must have been imposed in the interests of public order or morality. It cannot for a moment be contended that legislation seeking to prevent activities of associations falling within the category of those mentioned in the impugned Section is not legislation in the interests of public order or morality. It cannot, therefore, be held that the law or the Notification is void on that ground. One of the conditions of Cl. (4) of Art. 19 is thus satisfied. Whether the law would be abused is a different question altogether. As for the test of reasonableness it is well settled that the court is to be the judge of reasonableness. We need here only refer to what Das, J. of the Supreme Court said in Gopalan v. State of Madras AIR 1950 SC 27. Whether the law would be abused is a different question altogether. As for the test of reasonableness it is well settled that the court is to be the judge of reasonableness. We need here only refer to what Das, J. of the Supreme Court said in Gopalan v. State of Madras AIR 1950 SC 27. At page 109 of the report the learned judge has observed: "Whether any Law has in fact transgressed these limitations is to be ascertained by the Court and if in its view the restrictions imposed by the Law are greater than what is permitted by Cls.(2) to (6) whichever is applicable the Court will declare the same to be unconstitutional and, therefore, void under Art. 13. Here again there is scope for the application of the "Intellectual yardstick" of the Court. If however, the Court finds, on scrutiny, that the Law has not overstepped the constitutional limitations, the Court will have to uphold the Law, whether it likes the Law or not". 20. This view of the Court's function has since been followed in subsequent decisions both in the Supreme Court and in the various High Courts in India. A further preliminary fact to be noticed in this connection is that in deciding on the reasonableness or otherwise of the restrictions imposed by a law the substantive as well as the procedural provisions of the law should be examined. In Dr. Khare's Case (AIR 1950 SC 211) the learned Chief Justice of India observed (P. 214): "The Law providing reasonable restrictions on the exercise of the right conferred by Art. 19 may contain substantive provisions as well as procedural provisions. While the reasonableness of the restrictions has to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the Court the question of the reasonableness of the procedural part of the law It seems that the narrow construction sought to be put on the expression, to restrict the Court's power to consider only the substantive Law on the point, is not correct." Mukherjee, J. who dissented from the majority of the judges in that case agreed with the learned Chief justice on this point. 21. How far the impugned provision has kept itself within bounds or overstepped the bounds has to be decided against the background of these well-settled propositions. 21. How far the impugned provision has kept itself within bounds or overstepped the bounds has to be decided against the background of these well-settled propositions. In applying them to the law impugned here we may with respect state that we get valuable help from the decision in V.G. Row's case (AIR 1951 Mad. 147). No doubt with respect to the machinery provided for a review of the order passed by the Government the provision in the Madras Criminal Law Amendment Act 11 of 1950 and the Cochin Criminal Law Amendment Act, 27 of 1124 are different. The scope of the review and the extent of the authority of the two tribunals are also different. But there are very many features common to both enactments. We cannot therefore accede to the argument of the learned Advocate General that that decision cannot be helpful here or to agree with him that it does not lay down correct law. It is not true that the learned judges in that case did not examine the validity of the provision conferring authority on Government to declare associations of the kind specified in the enactment unlawful or the validity of the Notification issued under that provision. An order made by Government forfeiting certain amounts of the proscribed association was also challenged there, but the main question considered related to the constitutionality of the law and the legality of the Notification issued thereunder. 22. At this stage we may state that after a careful examination of the provision of the impugned Act we have come to the conclusion that S. 3 oversteps the bounds of permissible legislation and that it has therefore to be declared to have become void when the Constitution came into force. When the law under which the Notification was issued became void obviously a Notification issued under that law would also become void. The prosecution against the petitioner (and the other accused in the case) was therefore initiated without the sanction of any valid law and the charge has therefore to be quashed. 23. The Cochin Criminal Law Amendment Act, 27 of 1124 was intended to be a piece of permanent and peace time legislation. Notwithstanding its preventive aspect it is mainly punitive. The prosecution against the petitioner (and the other accused in the case) was therefore initiated without the sanction of any valid law and the charge has therefore to be quashed. 23. The Cochin Criminal Law Amendment Act, 27 of 1124 was intended to be a piece of permanent and peace time legislation. Notwithstanding its preventive aspect it is mainly punitive. Transgressions of a Notification issued under it are to be visited with punishments ranging from imprisonment for a period of six months to imprisonment for three years with or without fine. Once a prosecution is launched against an association declared to be unlawful the criminal Court cannot question the validity of the Notification and it cannot therefore be said the law gives persons hit by it an opportunity for a fair trial. Serious inroads are made regarding the right to property also. There is no time limit prescribed for the duration of a Notification issued under S. 3. Government alone have authority to decide how long an association declared to be unlawful should continue to remain under the ban imposed by them. No locus penitentae is given to those who were connected with the association when it was declared unlawful to withdraw from membership within a reasonable time of its Notification as such. Two radically different modes of procedure are to be followed with respect to prosecutions falling under the two categories of unlawful associations mentioned in Cls. (a) and (b) of S. 2(vi). While in respect of a prosecution against an unlawful association falling under Cl. (a) the normal mode of procedure is to be followed with respect to a case against an association declared to be unlawful by Government, the accused practically stands condemned even when the prosecution commences. The law is not that there will be presumption in favour of the prosecution that the association concerned is unlawful but that the accused cannot question the validity of the declaration of the Government to that effect. 24. With respect to a law which contains such Draconian provisions and serious inroads on the liberty of the citizen the law does not enjoin upon Government to specify the grounds on which the declaration is made or the reasons for making it or other particulars if any that may have a bearing on the necessity for the declaration. 24. With respect to a law which contains such Draconian provisions and serious inroads on the liberty of the citizen the law does not enjoin upon Government to specify the grounds on which the declaration is made or the reasons for making it or other particulars if any that may have a bearing on the necessity for the declaration. Nor is there is a provision for service of the notice of the declaration directly on the associations concerned or the members thereof. Where an association heretofore lawful is made unlawful, the most elementary principles of justice and fair play require some notice of the illegality to be given to the members of the Association so that they may regulate their conduct accordingly. The only publicity sought to be given to the Notification is by publication in the Official Gazette. This together with the imposition of a time limit for approaching the High Court to get the declaration cancelled makes the safeguard of a judicial review really illusory. In our opinion the cumulative effect of the absence of a provision for proper notice or sufficient publicity and the imposition of a time limit to seek a review of the Government order by the High Court is to make the law overstep the bounds of permissible legislation in such a manner that sub.cl.(4) of Art. 19 could not save it. In other words it offends Cl. (4) of Art. 19 as an unreasonable restriction on the exercise of the right conferred by Art. 19(1)(c). With the coming into force of the Constitution the law (S. 3 of the impugned Act) as also the Notification issued under it became void. 25. Here we may with advantage refer to the opinions the learned judges in V.G. Raw's case expressed regarding the absence of a provision for direct notice. At page 180 of the report, Rajamannar, C.J., is seen to have stated as follows: "The first and, in my opinion, the most important defect in the procedural part of the Act which renders the restriction unreasonable is the absence of any provision for the communication of the order of the Government declaring an association to be unlawful to the association and its members. The Act provides only for a notification in the Official Gazette. The Act provides only for a notification in the Official Gazette. Though it is true such a notification may in certain cases be treated as amounting to constructive notice of the order of the Government, yet in a case where drastic consequences ensue by reason of the order, the interest of the citizen requires a more direct notice. S. 16(1)(b) provides that the notification shall fix a reasonable period for any office-bearer or member of the association or any other person interested to make representation to the State Government in respect of the issue of the notification. Presumably after the lapse of the period so fixed, there will be no right of representation. It is easily conceivable that the members of an association may not have knowledge of the notification declaring it to be unlawful till after the lapse of the period fixed. Though all persons in a State are presumed to know the law of the land and ingnorance of law is no excuse, I do not think there is anything which makes it incumbent on every citizen to pursue regularly the Official Gazette. In the case of preventive detention or internment or externment the order is served on the person concerned. I do not mean to say that personal service is the only mode of service. In cases of evasion or absconding or in the other cases where it is impracticable to have personal notice, other modes of service may be resorted to. We are familiar with the alternative modes of notice provided under the Civil P.C. In the case of an association which is registered or has a distinctive name and a definite place set apart for its use, the notification can be served on any office-bearer of the association, or if no such office-bearer is available for service by affixture at the reputed place of the association. Without some such notice is appears to me to be unreasonable to say that the association and its members would be precluded from making a representation to the Government against the issue of the notification after a fixed time. S. 15(1) of the Act defines an association as "any combination or body of persons whether the same be known by any distinctive name or not". S. 15(1) of the Act defines an association as "any combination or body of persons whether the same be known by any distinctive name or not". The learned Advocate General contended that it would be open to the Government to issue a notification declaring "A, B and others" an unlawful association when the association is not known by a distinctive name, and it would be open to the Government to launch a prosecution against C, a person other than A and B provided they can prove at the hearing of the case that C was associated with A & B. The necessity of a personal notice in such a case on the members alleged to form an association becomes all the more apparent when in addition to the lack of a distinctive name, the association has no definite place. The opportunity evidently intended to be given to the association and its members to show cause against the issue of the notification will be illusory in the absence of a direct communication." At Page 155 Satyanarana Rao. J., says: "In the first place there is no provision in the Act for service of the grounds on any of the members or office-bearers of the association. The learned Advocate General attempted to argue that the issue of a notification which contains the grounds on which the declaration is made is itself a good substitute for services of grounds on the members or office-bearers of the association. In support of this contention, however, no authority has been cited before us. An association is defined in S. 15(1) of the Act as "any combination or body of persons whether the same be known by any distinctive name of not. If the association has a distinctive name and has a place of business, the ordinary mode of serving the notice may be to leave a notice at the place where the association carries on its business. It it has no distinctive name the association can be described only by the name of persons who form the combination or the names of the body of persons. The Government, thereofore, must know in such an event the names of the persons who constitute the combination or association. A combination cannot be known and unknown persons so as to make both the known and unknown persons, persons punishable under S.17 by virtue of the notification. The Government, thereofore, must know in such an event the names of the persons who constitute the combination or association. A combination cannot be known and unknown persons so as to make both the known and unknown persons, persons punishable under S.17 by virtue of the notification. If the persons are unknown it is difficult to see how the Government could be in a position to state in their grounds that the association has for its object all or any of the objects specified in S. 15(2)(b). In my view it is impossible to accept the argument that the issue of a notification tantamounts to service of the grounds on the aggrieved persons". At Pages 173 and 174 Viswanatha Sastri, J. observes: "There is no provision in the Act for service of the notice of the declaration on the Association through its office-bearers or members at its place of business. Such a provision is common in other enactments. The suggestion that the members of the association might be unknown to the Government does not carry weight for it is unreasonable to penalise persons whom you do not even know, for an alleged transgression of the law. A time for making representations against the declaration of the Government is fixed in the notification but in the absence of a service of the notice on the association or its office-bearers or members the time might pass by without their being aware of the notification at all. I am aware that in some cases, as for example, in the Income Tax Act, statutory provision is made for the publication of a general notification so as to fix all citizens with notice. I am also aware that citizens who were in enemy country during war time and who actively assisted the enemy have been condemned as war criminals without personal service of the proceedings but after publication in official gazette. But this rule of constructive service by publication is the exception rather the rule Pennayer v. Nett (1877) 95 U.S. 714". 26. The Cochin enactment as already noticed does not make it incumbent on Government to state the grounds or the reasons for making a declaration under S.3 and the notification impugned here merely reproduces the relevant clauses of the section with the conjunctive 'and' substituted for the disjunctive 'or in two places. 27. 26. The Cochin enactment as already noticed does not make it incumbent on Government to state the grounds or the reasons for making a declaration under S.3 and the notification impugned here merely reproduces the relevant clauses of the section with the conjunctive 'and' substituted for the disjunctive 'or in two places. 27. Unlike the Madras Criminal Law Amendment Act, 1950, the Cochin Criminal Law Amendment Act provides a safeguard to the aggrieved party to approach the High Court for cancellation of notification issued by Government. High Judicial opinion in England has doubted whether a Court of Law would be an appropriate tribunal in such matters. Per Lord Finaly L.C. in Rex v. Halliday (1917) AC 260 (269) and per Lord Wright in Liversidge v. Sir John Anderson ((1942) AC 206 (267)). We shall for the present assume that the provisions in the Cochin enactment afforded sufficient protection to an aggrieved citizen once a motion happened to be made for cancellation of the order. However the opportunity for making such a motion was few and far between when there was no provision for direct notice or better publicity and the time limit imposed to approach the High Court began to run from the date of the notification itself and not from the date of the knowledge thereof. 28. Very recently in Harla v. The State of Rajasthan (AIR 1951 SC 467) it fell to a Division Bench (Mahajan and Bose, JJ.) of the Supreme Court to consider the difference between Acts and orders in respect of promulgation and publication. We think it appropriate to extract some passages from the judgment in that case here. Bose, J., who gave the decision after referring to the facts of the case first said as follows: "In the absence of any special law or custom we are of opinion that it would be against the principles of natural justice to permit the subjects of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge. Natural justice requires that before a law can become operative it must be promulgated or published. Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is; or at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence". 29. Later after referring to the provisions of the English Law regarding the promulgation and publication of Acts of Parliament and Royal Proclamations the learned judge stated the reasons for the difference in the following words: "The principle underlying this question has been judicially considered in England. For example, on a somewhat lower plane, it was held in Johnson v. Sargant 1918 (1) KB 101= 87 LJKB 122 that an order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order 1917, does not become operative until it is made known to public, and the difference between an order of that kind and an Act of the British Pariament is stressed. The difference is obvious. Acts of the British Parliament are publicly enacted. The debates are open to the public and the Acts are passed by the accredited representatives of the people who in theory can be trusted to see that their constitutents know what has been done. They also receive wide publicity in papers and, now, over the wireless. Not so Royal Proclamations and orders of Food Controller and so forth. There must, therefore be promulgation and publication in their cases. The mode of publication can vary, what is a good method in one country may not necessarily be the best in another. But reasonable publication of some sort there must be". The above case lends considerable support to the view we take here that the provision in the Cochin Criminal Law Amendment Act 1124 regarding the publication of a notification under S.3, is open to grave objections. 30. In the view we take that S.3 transgresses all reasonable bounds recognised by sub-cl. (4) of Art.19 and that the section hence became void when the Constitution came into force it is unnecessary for the present case to consider how far that section offends Art.14. We therefore leave that matter open. 31. 30. In the view we take that S.3 transgresses all reasonable bounds recognised by sub-cl. (4) of Art.19 and that the section hence became void when the Constitution came into force it is unnecessary for the present case to consider how far that section offends Art.14. We therefore leave that matter open. 31. As a result of the conclusion we have arrived at in the foregoing paragraphs we hold that S.3, Cochin Criminal Law Amendment Act 27 of 1124 became void on 26th January 1950. The Notification issued by Government thereunder on 2nd January 1950 ceases to be valid on the said date (26th January 1950) and the prosecution for transgression thereof in respect of acts after the said date is clearly unsustainable. The petitioner's prayer to quash the charge framed in the case (CC 75 of 1950 on the file of the Trichur Special First Class Magistrate's Court) has therefore to be allowed and we order accordingly. O.P.8 of 1951 and Crl. R.P. No. 66 of 1951 both succeed. 32. In passing the above order quashing the charged framed in the case as a whole we have not omitted to notice that one alone out of the several accused persons has filed these petitions. The records of the case were called for and in the exercise of its revisional jurisdiction this court is of its own motion competent to pass such an order. We do not however know whether the detention in jail of the petitioner and the other accused who have been apprehended is on account of this case alone. As such we do not pass any order for their immediate release. A copy of this order will be immediately forwarded to the Special First Class Magistrate, Trichur for appropriate action. Leave granted. Allowed.