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1966 DIGILAW 73 (ALL)

State of U. P. v. Mahavir Prasad

1966-02-14

B.GUPTA, M.CHANDRA

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JUDGMENT B. Gupta, J. - This is an appeal by the State Government against an order of the First Additional Sessions Judge, Etawah, acquitting the respondent Mahavir Prasad of an offence under Sec. 125 of the Defence of India Rules for which he had been convicted by the learned Magistrate and sentenced to pay a fine. 2. The relevant facts may be briefly stated as follows: - 3. On the 25th of March, 1963, the police, after obtaining a warrant from Sri V. S. Trivedi, a Magistrate of the I Class posted at Etawah, raided the shop run by the respondent, arrested the respondent and brought him to the Kotwali alleging that the respondent had stocked washing soap at his shop without displaying its price-list, thus contravening clause 4 of the Essential Articles (Price Control) Order, 1963, hereinafter referred to as the Order. Sri V. S. Trivedi aforesaid tried the respondent the same day in the Kotwali itself. The respondent, according to the record maintained by the learned Magistrate, pleaded guilty and was thereafter, the same day, convicted and sentenced as above. The respondent filed an appeal along with an affidavit making allegations to the effect that he had been compelled to plead guilty, that he had not been given proper opportunity defend himself and that the trial was substantially a farce with the result that his conviction was fit to be set aside. The learned Judge, after observing that since Sri Trivedi had himself issued the warrant on the basis of the information received by him, he should not have himself tried the respondent, and after using unjustifiedly strong language touching the manner in which the Magistrate conducted the proceedings before him, recorded the conclusion, for reasons which need not be detailed herein, that the trial of the respondent was not fair and the plea of guilty recorded by the Magistrate appeared to have been unfounded. 4. Another contention which had been raised before the learned Judge was that since the Order in question mentioned no date of its commencement it could not be said that the Order had come into force and was in force on the date, viz., the 25th of March, 1963, on which the respondent was alleged to have committed the offence. 4. Another contention which had been raised before the learned Judge was that since the Order in question mentioned no date of its commencement it could not be said that the Order had come into force and was in force on the date, viz., the 25th of March, 1963, on which the respondent was alleged to have committed the offence. The learned Judge accepted this contention also and, in the result, allowed the respondents appeal and set aside the conviction of the respondent and the sentence awarded to him. The State Government then filed the appeal which is before us today. 5. At the very inception of the appeal learned counsel for the respondent drew our attention to the decision of a Division Bench of this Court in which the learned Judges held that the Order in question before us could not be deemed to have been in force on the 25th of March, 1963, (vide Government Appeal No. 2692 of 1963 decided by Hon. T. Ramabhadran and Tripathi, JJ., on the 29th of October, 1965). On a perusal of the aforesaid decision we find that it appears that the language of clause 3 of the Order, which had been placed before the learned Judge who decided the aforesaid case, was not the language of the Order as it stood on the relevant date, viz., the 25th of March, 1963, which was the date in that case also on which the offence of contravention of the Order was alleged to have taken place. Clause 3 of the Order, as originally published, was in the language reproduced by the learned Judges which included the expression "with effect from the commencement of this Order." The aforesaid clause was, however, substituted by a fresh, clause, by a notification published in the Gazette of India Extraordinary of the 6th of March, 1963, and in the language of this substituted clause the expression "with effect from the commencement this Order" was not to be found. The main ground given by the learned Judges for their view that since the Order did not mention the date of its commencement it could not be held to have come into force on the 25th of March, 1963, was founded on the expression "with effect from the commencement of this Order." Learned counsel for the State has urged that the reasoning given by the learned Judges for the interpretation given by them was founded on an error as to the language of Cl. 3 of the Order. It may be that the attention of the learned Judges, who decided the above case, was not drawn to the fact that the language of the Order, as originally published, had been changed before the 25th of March, 1963. We are, however, of the view that, even so, it would make no difference to the conclusion arrived by the learned Judges. 6. Clause 3 of the order, as originally published, included the expression "with effect from the commencement of this Order," but the Order did not state that it commenced forthwith or was to commence from any particular date, and there can be no doubt that, at that time, a notification in future, notifying the commencement of the Order, was contemplated. Mere removal of the expression "with effect from the commencement of this Order," which took place by the notification of the 6th of March, 1963, without anything more, cannot be tantamount to enforcement of the Order which had not till then been enforced. The result was that Clause 3 of the Order cannot be deemed to have come into force even on the 6th of March, 1963. In our opinion, the same reasoning must, a fortiori , apply to Clause 4 of the Order with which we are concerned, inasmuch as it cannot be that, even though, with reference to Cl. 3 the Order had not become operative, it had become operative in respect of Cl 4. 7. In our opinion, the same reasoning must, a fortiori , apply to Clause 4 of the Order with which we are concerned, inasmuch as it cannot be that, even though, with reference to Cl. 3 the Order had not become operative, it had become operative in respect of Cl 4. 7. Reliance on behalf of the State was placed on Sec. 5 of the General Clauses Act (Central Act) which runs as follows: - "5(1) Where any Central Act is not expressed to come into operation on a particular day, then it shall come into operation on the day on which it receives the assent, - (a) in case of a Central Act made before the commencement of the Constitution, of the Governor-General, and (b) in the case of an Act of Parliament, of the President. * * * * (3) Unless the contrary is expressed a Central Act or Regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement." 8. The question is whether the expression "Central Act" in Clause (1) should be construed as including an Order issued by the Central Government. The expression "Central Act" has been defined by the General Clauses Act itself in clause (7) of Sec. 3 thereof. The definition is as follows: - "(7) Central Act shall mean an Act of Parliament, and shall include - (a) an Act of the Dominion Legislature or of the Indian Legislature passed before the commencement of the Constitution, and (b) an Act made before such commencement by the Governor-General, acting in a legislative capacity." 9. Learned counsel for the State has failed to point out any material in the Act which might support his contention that, notwithstanding the terms of the definition of the expression "Central Act" as above, the expression "Central Act" used in Sec. 5 of the General Clauses Act must be interpreted as including an Order issued by the Central Government. Reliance, on the other hand, was placed on behalf of the respondent on the view of a Division Bench of this Court expressed in the case of Harpal Singh v. State, A.I.R. 1950 Alld. 562. Reliance, on the other hand, was placed on behalf of the respondent on the view of a Division Bench of this Court expressed in the case of Harpal Singh v. State, A.I.R. 1950 Alld. 562. The contention raised before the learned Judges in the above case was that an Order passed by the President should be deemed to be a law made by Parliament, and reliance for this proposition was placed on the provisions of Sec. 5 of the General Clauses Act. Raghubar Dayal, J. who gave the leading judgment, in para 46 of his judgment, as reported, observed that it was not possible to consider an Order issued by the President as law made by Parliament. 10. We see no reason to take a different view. In our opinion, in view particularly of the fact that the Order gives rise to offences, it must be strictly construed and failure on the part of the authority issuing the Order to lay down any date as the date of its commencement must lead to the result that the Order cannot be deemed to have come into operation. We, therefore, agree with the learned Judge that the Order for the contravention whereof the respondent had been convicted by the learned Magistrate had not come into force on the 25th of March, 1963, with the result that the respondent could not have been convicted for what was alleged to have been a contravention of that Order. 11. The result is that this appeal fails and is dismissed.