HERMEN D CRUZ v. STATE OF KERALA — 1963 DIGILAW 157 (KER)

Judgment :- 1. This is an application by the eighth accused in Crime No. 94 of 1963 of the Poonthura Police Station for enlarging him on bail pending trial of the case. The allegation against the accused is that on 17 51963 accused 1 to 3 and 6 to 10 instigated the Tindal and the crew including accused 4, 5 and 11 to 13 to resist the attempt of the officers to take delivery of the rice bags which had arrived by ship S. S. Maharani at the Valiathura port, thereby impeding and delaying the means of transport of the rice bags from the boat to the Government godown and also abetted the use of criminal force against public servants. The acts, if proved, would amount to "prejudicial acts" within the meaning of R.35 Clause.6 sub-clauses (i) and (o), offences punishable under R.41 Clause.5 of the Defence of India Rules, 1962. Rule 41 (1) says that no person shall, without lawful authority or excuse do any prejudicial acts. Sub-rule (6) of R.35 indicates what is meant by prejudicial act and clause (i) of that sub-rule says that any act which is intended or is likely to impede, delay or restrict the means of transport or locomotion, any work necessary for the efficient conduct of military operations, the production, handling or transport of any munitions or the supply or distribution of any essential commodity is a prejudicial act. Essential commodity under S.35 (5) would take in food products like rice. Likewise clause (o) lays down that to instigate directly or indirectly the use of criminal force against public servants generally or any class of public servants or any individual public servant would amount to the commission of a prejudicial act. The petitioner denied the commission of the offence and denied participation in the acts alleged. The learned Sessions Judge before whom the petitioner applied for bail rejected the application on the ground that R.155 of the Rules framed under the Defence of India Act restricts the discretion of the court in the matter of granting bail and that a person accused of contravention of any rules notified by the Central Government cannot be released on bail unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention. That the offences charged have been notified by the Central Government is now conceded by the learned counsel for the petitioner even though disputed in the petition. The learned Advocate General has placed before us the relevant notification made by the Ministry of Home Affairs of the Government of India. 2. What is contended by the learned counsel for the petitioner is, that there is excessive delegation, that the Parliament has in S.3 given power to the Central Government to make rules without laying down any guiding principle, that the Parliament has really abdicated its essential function and the delegation is so uncanalised and uncontrolled that it amounts to the setting up of a parallel legislature. It is also stated that R.155, in particular, is ultra vires and void inasmuch as the rule involves the repeal of S.496 and 497 of the Criminal Procedure Code which is a legislative power and the Central Government as a delegated authority can exercise no such power. In other words what is stated is that the power of making rules which will have the effect of repealing by implication any existing law cannot be delegated. Reliance was placed on the majority decision of the Supreme Court in In re Art.143 Constitution of India and Delhi Laws (1912), (AIR. 1951 SC. 332) where it has been laid down that to repeal or abrogate an existing law is the exercise of an essential legislative power and the conferment of power of such wide amplitude, to make the rule inconsistent with the pre-existing laws is nothing short of power to repeal. The learned Advocate General while agreeing that the legislature cannot part with its essential function, namely, declaring its policy submits that no such thing has been done in this case. He has argued that the policy may be particularised in as few or as many words as the legislature thinks proper and it is enough if an intelligent guidance is given to the subordinate authority. It was also stated that the court can interfere only if no policy is discernible at all or the delegation is of such an indefinite character as to amount to abdication of legislative power. Learned Advocate General has referred to various rulings in support of his contention. We will refer only to a few of the important decisions. 3. In Harishankar Bagla v. The State of M. P. (AIR. 1954 SC. Learned Advocate General has referred to various rulings in support of his contention. We will refer only to a few of the important decisions. 3. In Harishankar Bagla v. The State of M. P. (AIR. 1954 SC. 465), S.3 and 4 of the Essential Supplies (Temporary Powers) Act, 1946 were attacked as ultra vires on the ground of excessive delegation of Legislative power. Mahajan C. J. who delivered the judgment of the court conceded that the legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. The essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into binding rule of conduct. The learned judge then considered the question whether such a policy had been laid down and stated that legislature has laid down such a principle and that ‘principle is the maintenance or increase in supply of essential commodities and of securing equitable distribution and availability at fair prices. The principle was clear and it offered sufficient guidance to the Central Government in exercising its powers under S.3. For deciding whether guidance was afforded to the delegate in bringing into operation the material provisions of the Act by laying down the principles, his Lordship stated that the court may consider the statement of the principles contained in the preamble to the Act, as well as to the provisions of the Act itself. This decision shows that if we can find a reasonably clear statement of policy underlying the provisions of the Act either in the provisions of the Act or the preamble, then any part of the Act cannot be attacked on the ground of delegated legislation by suggesting that questions of policy have been left to the delegate. 4. In Messrs. Bhatnagars & Co., Ltd. v. The Union of India & Others (AIR. 1957 S. C. 478) the vires of the Imports and Exports (Control) Act, 1947 was questioned. That Act purported to continue for a limited period, powers to prohibit or control imports and exports which had already been enacted by the Defence of India Act, 1939 and the rules framed thereunder. 1957 S. C. 478) the vires of the Imports and Exports (Control) Act, 1947 was questioned. That Act purported to continue for a limited period, powers to prohibit or control imports and exports which had already been enacted by the Defence of India Act, 1939 and the rules framed thereunder. The learned judges said, it would, therefore, be legitimate to consider the preamble of the predecessor Act and the relevant provisions in it to find out whether the legislature has laid down clearly the policy underlying that Act and has enunciated the principles for the guidance of those to whom authority to implement the Act has been delegated. It was stated that the preamble of the Defence of India Act refers to the emergency which had arisen when the Act was passed and refers to the necessity to take special measures to ensure the public safety and public interest. S.2 of the Act further provided that the Central Government thought that it is essential to secure public safety and maintenance of the public order and, what is more relevant and material, the maintenance of supplies and services essential to the life of the community. Their Lordships, therefore, said that it is clear that the broad& main principle underlying the Act, was to maintain supplies essential to the life of the community. 5. We will now examine the preamble and S.3 of the Defence of India Act 1962. In the preamble there is a reference to the state of emergency whereby the security of India has been threatened by external aggression. The Parliament has declared, that it is necessary to provide for special measures, to ensure public safety and interest, the defence of India and civil defence and for the trial of certain offences and for matters connected therewith. S.3 of the Act further provided that when it appears necessary or expedient to secure public safety and maintenance of public order or for maintaining supplies and services essential to the life of the community rules for the purpose may be made by the Central Government. The preamble and the body of the section has, therefore, with sufficient clearness and definite-ness laid down the legislative policy and for what purpose rules can be made. It has been laid down in S.3 that the rules made must be notified in the official gazette. The preamble and the body of the section has, therefore, with sufficient clearness and definite-ness laid down the legislative policy and for what purpose rules can be made. It has been laid down in S.3 that the rules made must be notified in the official gazette. Further safeguard is provided in S.41 making it obligatory on the Central Government to place before each House of Parliament the rules made by them and the Parliament is given the power to modify or cancel the rules. From a reading of all these provisions it would be abundantly clear that the Central Government has not delegated any essential legislative function. Where the legislature provides and lays down a principle underlying the provisions of a particular statute and also affords guidance for the implementation or enforcement of the said principles, it is open to the legislature to leave the actual implementation or enforcement to its chosen delegate and that is what has been done in this case. It cannot, therefore, be contended that S.3 is bad on account of excessive delegation of the legislative function to the Central Government. The Central legislature has not effaced itself or abdicated its functions in favour of the Central Government. 6. The next contention that is raised is that R.155 operates as an implied repeal of S.496 and 497 and is, therefore, invalid. Assuming that R.155 repeals by implication S.496 and 497 of the Criminal Procedure Code, the repeal is not by any act of the delegate, namely, the Central Government but the repeal is by the legislative act of the Parliament itself. By enacting S.43 of the Act the Parliament itself has declared that the provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent contained in any enactment other than this Act. A similar contention was raised in the case in Harishankar Bagla v. The State of M. P. (AIR. 1954 SC. 465) where a similar provision under the Essential Supplies (Temporary Powers) Act came up for consideration. In that Act S.6 stated: "Any order made under S.3 shall have the effect notwithstanding anything inconsistent therewith contained in any enactment other than the Act or any instrument having the effect by virtue of any enactment other than this Act." S. 43 of the Defence of India Act 1962 is also in the same terms. In that Act S.6 stated: "Any order made under S.3 shall have the effect notwithstanding anything inconsistent therewith contained in any enactment other than the Act or any instrument having the effect by virtue of any enactment other than this Act." S. 43 of the Defence of India Act 1962 is also in the same terms. It reads: "The provisions of this Act or any rule made thereunder or any order made under any such rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act." Mahajan C. J. speaking for the Bench stated: "Conceding, however, for the sake of argument that to the extent of a repugnancy between an order made under S.3 and the provisions of an existing law, to the extent of the repugnancy, the existing law stands repealed by implication, it seems to us that the repeal is not by any act of the delegate, but the repeal is by the legislative act of the Parliament itself. By enacting S.6, Parliament itself has declared that an order made under S.3 shall have effect notwithstanding any inconsistency in this order with any enactment other than this Act. This is not a declaration made by the delegate, but the legislature itself has declared its will that way in S.6. The abrogation or the implied repeal is by force of the legislative declaration contained in S.6 and is not by force of the order made by the delegate under S.3. The power of the dele gate is only to make an order under S.3. Once the delegate has made that order its power is exhausted. S.6 then steps in wherein the Parliament has declared that as soon as such an order comes into being that will have effect notwithstanding any inconsistency therewith contained in any enactment other than this Act. Parliament being supreme, it certainly could make a law abrogating or repealing by implication provisions of any pre-existing law and no exception could be taken on the ground of excessive delegation to the act of the Parliament itself. There is no delegation involved in the provisions of S.6 at all and that section could not be held to be unconstitutional, on that ground." 7. There is no delegation involved in the provisions of S.6 at all and that section could not be held to be unconstitutional, on that ground." 7. We will now examine some of the cases where the validity of a similar provision, R.130A made under the Defence of India Act, 1939 was challenged. In the case in re Bhuvaraha Iyengar (AIR. 1942 Mad. 221), Leach C. J., and Happell J., held: "The fact that the specified matters do not include bail applications does not mean that the Central Government cannot make rules with regard to bail applications if it considers that in the public interest it is necessary to do so. The general power conferred by sub-section (1) is left entirely unaffected by what is stated in sub-section (2). Moreover sub-section (3) (i) of S.2 says that the rules made under sub-section (1) may further provide for the arrest and trial of persons contravening any of the rules. This provision in itself appears to be wide enough to cover R.130 A without any recourse to sub-section (1). If power is given to make rules with regard to the trial does this not imply power to make rules with regard to the custody of the accused pending trial?" 8. The same view was taken in a Full Bench of the Allahabad High Court in Nolan v. Emperor (AIR. 1944 All. 118) Iqbal Ahmad C. J. observed: "By R.130A the Central Government has made a special provision regarding the disposal of an application for bail made by a person accused or convicted of a contravention of the Defence of India Rules. This provision does, in my judgment, fall within the purview of sub-section (3) (1) quoted above. The word 'arrest' in ordinary parlance means detention and custody. It is therefore manifest that the Central Government is by virtue of sub-section just mentioned competent to make provision for the detention and custody of a person charged with the contravention of the rules. This being so, it is clear to my mind that it is within the competence of the Central Government to prescribe the conditions and limitations regarding such detention and custody. In other words, while making provision for the arrest of an offender, it is open to the Central Government to enact a rule that the offender shall not be released on bail and shall be detained in custody until acquitted or discharged. In other words, while making provision for the arrest of an offender, it is open to the Central Government to enact a rule that the offender shall not be released on bail and shall be detained in custody until acquitted or discharged. It follows that, while making provision for the arrest of an offender, the Central Government could prescribe the conditions which could justify the offender's release on bail. R.130A does no more than lay down the conditions which must be fulfilled before such an offender is released on bail and is therefore within the rule making authority of the Central Government." 9. The question whether the effect of R.130A is to repeal the provisions of S.496 of the Criminal Procedure Code and whether it is a valid provision was considered in the case in In re Surajlal Harilal Majumdar (AIR. 1943 Born. 82). Their Lordships held: "The effect of that rule is to repeal the provisions of S.496, Criminal P. C. in so far as it divests the court of its discretion in the matter of refusing bail in cases of bailable offences. All that R.130A says in effect is that notwithstanding the provisions of S.496 no person accused or convicted of a contravention of the rules under the Defence of India Act shall be released unless an opportunity is given to the prosecution to oppose the application for such release. There is nothing left to implication. The legislature may impliedly repeal penal Acts by a later enactment like any other statute even if the repeal introduces stringency of procedure or takes away a privilege. No authority to the contrary has been cited before us". 10. A Division Bench of the Patna High Court in the case in Saligram Singh v. Emperor (AIR. 1945 Pat. 69) also held that R.130 A is neither ultra vires nor inoperative. The rule making power provided by the Defence of India Act gives power to make such a rule. Their Lordships stated: "Mr. Raj Kishore Prasad next, however puts forward the proposition that a rule such as 130A which repeals by implication certain provisions of the Code of Criminal Procedure and divests the High Court of its powers is invalid, because this could be done only by the legislature itself under S.298 and 223, Government of India Act, 1935, and not by rules framed under statutory authority. The answer is that statutory rules if validly made within the powers conferred by the Act must be regarded as part of the Act itself and made with full authority of the legislature. The statutory rules must be held to be a part of the parent Act, and can do anything it can do if within its scope. Having regard to S.3, Defence of India Act, any provisions of the Code of Criminal Procedure inconsistent with anything in the Actor rules must therefore, be regarded as repealed." 11. We respectfully agree with the view taken in these cases and we have no hesitation in holding that R.155 of the Defence of India Rules embodies a valid and binding provision of law. In the first information report and the charge sheet, grave charges are alleged against the petitioner and at this stage it is impossible for any court to be satisfied that there are reasonable grounds for believing that the petitioner is not guilty of the contravention of the rules. The petitioner is, therefore, not entitled to be released on bail. The petition is dismissed and the interim bail granted by the Court is cancelled. Dismissed.