# GOPI CHAND v. THE DELHI ADMINISTRATION

- **Citation:** [1959] Supp. 2 S.C.R. 87
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Case number:** Criminal Appeals Nos. 25-27 of 1955
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gopi-chand-v-the-delhi-administration-1695
- **Pages:** 21

## Headnote

(2) S.C.R. SUPREME COURT REPORTS
87
GOPI CHAND
v.
THE DELHI ADMINISTRATION
(S. R. DAS, c. J., s. K. DAS, P. B. GAJENDRAGADKAR,
K. N. WANCHOO and HrnAYATULLAH, JJ.) ·
Criminal Trial-Temporary enactment-Provision for trial of
specified offences under summons procedure in notified areas-Constitutional validity-Applicability to proceedings pending on expiry
of enactment-Absence of saving provision-East Punjab Public
Safety Act, r949 (Punj. 5 of r949), ss. 36(I), 2o-Constitution of
India, Art. r4-General Clauses Act, r879 (Io of r879), s. 6.
Section 36(1) of the East Punjab Public Safety Act, r949,
(Punj. 5 of r949), which was passed in the wake of the partition
disturbances in India with a view to ensure public safety and
the maintenance of public order, provided that offences mentioned therein and committed in the area declared to be dangerously disturbed under s. 20 of the Act, should be tried under the
summons procedure prescribed by Ch. XX of the Code of Criminal Procedure. By the first notification issued under s. 20 of
the Act, the whole of the Province of Delhi was declared to be a
dangerously disturbed area; subsequently the second notification purported to cancel the first. The third notification then
sought to modify the second by inserting into it the words "except
as respect things done or omitted to be done before this notification". The fourth and last notification issued under s. 36(r)
of the Act sought to save proceedings thereunder pending after
the cancellation of the first notification. The appellant who
was put up for trial in three cases for offences ordinarily triable
under the warrant procedure, was tried under the summons procedure according to s. 36(r) of the Act and the first notification
and the trials were continued even after the expiry of the Act in
respect of substantial parts of them under the same procedure
and ended in his conviction which was affirmed by the High
Court in appeal. The Act was a temporary Act and contained
no provision saving pending proceedings. It was contended on
behalf of the appellant that the first part of s. 36(1) of the Act
in treating the disturbed areas as a class by themselves and providing a uniform procedure for the trial of specified offences
violated Art. r4 of the Constitution and that the continuance of
the trials under the summons procedure even after.the expiry of
the Act was invalid. ·
Held, that the two tests of the validity of the classification
made by the Legislature were, (r) that t~e classification must be
based on an intelligible differentia and (2) that this differentia
must be reasonably connected with the object of the legislation.
Thus tested, there could be no doubt, in the present case, that
the classification on a geographical basis made by the impugned
I959
January 20.
I959
Gopi Chand
v.
The Delhi
Administration
88
SUPREME COURT REPORTS [1959] Supp.
Act between areas that were dangerously disturbed and other
areas, in the interest of speedy trial of offences, was perfectly
justified.
Ram Krishna Dalmia v. Justice Tendolkar, [r959] S.C.R. 279,
relied on.
Lachmandas Kewalram Ahuja v. The State of Bombay, [r952]
S.C.R. 7ro, held inapplicable.
But since the impugned Act was a temporary Act and contained no appropriate provision saving the summons procedure
prescribed by it, that procedure could not, on the expiry of the
Act, apply to the cases pending against the appellant.
Krishnan v. The State of Madras, [r95r] S.C.R. 62I, relied
on.
Wicks v. Director of Public Prosecutions, (1947] A.C. 362,
referred to.
The third and the fourth notifications, obviously intended
to cure the absence of a saving provision in the Act, were wholly
outside the authority conferred on the delegate by s. 20 or
s. :;6(1) of the Act and must be held to be invalid. With the
issue of the second notification, therefore, the entire province
of Delhi ceased to be a dangerously disturbed area.
It was erroneons to apply by analogy the provisions of s. 6
of the General Clauses Act to

## Text

_Characters 0–39,873 of 47,764. This is a partial read: ask again with offset=39873 for what follows._

(2) S.C.R. SUPREME COURT REPORTS
87
GOPI CHAND
v.
THE DELHI ADMINISTRATION
(S. R. DAS, c. J., s. K. DAS, P. B. GAJENDRAGADKAR,
K. N. WANCHOO and HrnAYATULLAH, JJ.) ·
Criminal Trial-Temporary enactment-Provision for trial of
specified offences under summons procedure in notified areas-Constitutional validity-Applicability to proceedings pending on expiry
of enactment-Absence of saving provision-East Punjab Public
Safety Act, r949 (Punj. 5 of r949), ss. 36(I), 2o-Constitution of
India, Art. r4-General Clauses Act, r879 (Io of r879), s. 6.
Section 36(1) of the East Punjab Public Safety Act, r949,
(Punj. 5 of r949), which was passed in the wake of the partition
disturbances in India with a view to ensure public safety and
the maintenance of public order, provided that offences mentioned therein and committed in the area declared to be dangerously disturbed under s. 20 of the Act, should be tried under the
summons procedure prescribed by Ch. XX of the Code of Criminal Procedure. By the first notification issued under s. 20 of
the Act, the whole of the Province of Delhi was declared to be a
dangerously disturbed area; subsequently the second notification purported to cancel the first. The third notification then
sought to modify the second by inserting into it the words "except
as respect things done or omitted to be done before this notification". The fourth and last notification issued under s. 36(r)
of the Act sought to save proceedings thereunder pending after
the cancellation of the first notification. The appellant who
was put up for trial in three cases for offences ordinarily triable
under the warrant procedure, was tried under the summons procedure according to s. 36(r) of the Act and the first notification
and the trials were continued even after the expiry of the Act in
respect of substantial parts of them under the same procedure
and ended in his conviction which was affirmed by the High
Court in appeal. The Act was a temporary Act and contained
no provision saving pending proceedings. It was contended on
behalf of the appellant that the first part of s. 36(1) of the Act
in treating the disturbed areas as a class by themselves and providing a uniform procedure for the trial of specified offences
violated Art. r4 of the Constitution and that the continuance of
the trials under the summons procedure even after.the expiry of
the Act was invalid. ·
Held, that the two tests of the validity of the classification
made by the Legislature were, (r) that t~e classification must be
based on an intelligible differentia and (2) that this differentia
must be reasonably connected with the object of the legislation.
Thus tested, there could be no doubt, in the present case, that
the classification on a geographical basis made by the impugned
I959
January 20.
I959
Gopi Chand
v.
The Delhi
Administration
88
SUPREME COURT REPORTS [1959] Supp.
Act between areas that were dangerously disturbed and other
areas, in the interest of speedy trial of offences, was perfectly
justified.
Ram Krishna Dalmia v. Justice Tendolkar, [r959] S.C.R. 279,
relied on.
Lachmandas Kewalram Ahuja v. The State of Bombay, [r952]
S.C.R. 7ro, held inapplicable.
But since the impugned Act was a temporary Act and contained no appropriate provision saving the summons procedure
prescribed by it, that procedure could not, on the expiry of the
Act, apply to the cases pending against the appellant.
Krishnan v. The State of Madras, [r95r] S.C.R. 62I, relied
on.
Wicks v. Director of Public Prosecutions, (1947] A.C. 362,
referred to.
The third and the fourth notifications, obviously intended
to cure the absence of a saving provision in the Act, were wholly
outside the authority conferred on the delegate by s. 20 or
s. :;6(1) of the Act and must be held to be invalid. With the
issue of the second notification, therefore, the entire province
of Delhi ceased to be a dangerously disturbed area.
It was erroneons to apply by analogy the provisions of s. 6
of the General Clauses Act to cases governed by a te1nporary
Act, such as the one in question, which did not contain the
appropriate saving provision and contend that since the trials
had commenced validly, their continuance under the same procedure even after the declaration had ceased to operate and
subsequent orders of conviction and sentence passed therein were
valid as well.
Srinivasachari v. The Queen, (r883) I.L.R. 6 Mad. 336,
Muk,;nd v. Laib<, (19or) 3 Born. L.R. 584 and Gardner v. Lucas,
(r878) 3 A.C. 582, held inapplicable.
Ram Singh v. The Crown, A.I.R. r950 East Punjab 25, disapproved.
Syed Qasim Razvi v. The State of Hyderabad, [1953] S.C.R.
589, referred to and distinguished.
CRIMINAL
APPELLATE JURISDICTION:
Criminal
Appeals Nos. 25-27 of 1955.
Appeals from the judgments and order dated
February 1, 1955, of the Punjab High Court (Circuit
Bench), Delhi in Cr. Appeals Nos. 5-D, 6-D and 13-D
of 1952, arising out, of the judgments and orders dated
December 22, 1951, of the 1st Class Magistrate, New
Delhi in Criminal Cases Nos. 220/2, 221/2 and 223/2
of 1949.
(2) S.C.R. SUPREME COURT REPORTS
89
Ram Lal Anand and S. N. Anand, for the appellant.
1959
Gopi Chand
H.J. Umriga.r and T. M. Sen, for the respondent.
v.
1959. January 20.
The Judgment of the Court
The Delhi
was delivered by
Administration
GAJENDRAGADKAR J.-These three appeals havecajendragadkar J.
been filed with certificates granted by the High Court
of Punjab under Art. 134(1) (c) of the Constitution and
they arise from three criminal cases filed against the
appellant. 'rhe appellant Gopi Chand was the chief
cashier, and Hukam Chand was an assistant cashier,
in the United Commercial Bank Ltd., New Delhi. They
were charged with the commission of offences under
s. 409 in three separate cases. In the first case No. 223/2
of 1949, the prosecution case was that on or about
April 8, 19<!8, bot,h had agreed to commit, or cause to
be committed, criminal breach of trust in respect of
the funds of the Bank where they were employed;
and in pursuance of the said agreement they had
committed criminal breach of trust in respect of the
total amount of Rs. 1,65,000. They were thus charged
under ss. 408, 409 and 120B of the Indian Penal Code.
The appellant was convicted of the offence under s. 409
read with s. 120 and sentenced to rigorous imprisonment for seven years. Against this order of conviction
and sentence he preferred an appeal to the High Court
of Punjab (No. 5-D of 1952). The High Court confirmed his conviction but altered the sentence imposed on
him by directing that he should suffer four year's
:rigorous imprisonment and pay a fine of Rs. 10,000 or
in default suffer rigorous imprisonment for fifteen
months. The order of conviction and sentence thus
passed gives rise to Criminal Appeal No. 25 of 1955 in
this Court.
In the second case (No. 221/2 of 1949) the appellant
was charged with having committed an offence under
ss. 408 and 409 of the Indian Penal Code in that he
had committed criminal breach of trust in respect of
an amount of Rs. 23,772-8-6. The trial magistrate
convicted the appellant of the said offence and sentenced him to suffer rigorous imprisonment for five years.
12
90
SUPREME COURT REPORTS [1959] Supp.
'959
On appeal (No. 6-D of 1952) the order of conviction
was confirmed but the sentence imposed on him was
Gopi Chand
reduced to three years' rigorous imprisonment. This
v.
The Delhi
order has given rise to Criminal Appeal No. 26 of 1955
Administration in this Court.
In the third case (No. 220/2 of 1949) the appellant,
Gajendragadkar ]. Hukam Chand and Ganga Dayal were charged with
having committed an offen.ce under s. 409/408 read
with s. 120B of the Indian Penal Code in that all of
them had agreed to commit criminal breach of trust in
respect of the sum of Rs. 10,000 belonging to the Bank
and that in pursuance of the said agreement they had
committed the "riminal breach of trust in respect of
the said amount. The trial magistrate convicted the
appellant of the offence charged and sentenced him to
four year's
rigorous
imprisonment.
On appeal
(No. 13-D of 1952) the High Court confirmed the conviction but reduced the sentence to two years' rigorous
imprisonment. From this order arises Criminal Appeal
No. 27 of 1955 in this Court.
The appellant has obtained a certificate from the
High Court under Art. 134(1) (c) of the Constitution
because he seeks to cha)lenge the validity of the order
of conviction and sentence passed against him in the
three cases on the ground that the proceedings in all
the said cases are void.. He contends that, whereas
the charges framed against him had to be tried according to the procedure prescribed for the trial of warrant
cases, the learned trial magistrate tried all the cases
according to the procedure prescribed for the trial of
summons cases and that makes void all the proceedings
including the final orders of conviction and the
sentences.
The point arises ·in this way. The East Punjab
Public Safety Act, 1949 (Punj. 5 of 1949), hereinafter
called the Act, which came into force on March 29,
1949, was passed to provide for special measures to
ensure public safety and maintenance of public order.
It is common ground that the offences with which the
appellant was charged would normally have to be
tried under the procedure prescribed by ch. XXI of
the Code of Criminal Procedure for the trial of warrant
I
(2) S.C.R.
SUPREME COURT REPORTS
91
cases but in fact they have been. tried under the
z959
procedure prescribed by ch. XX for the trial of sumd
d cc
Gopi Chand
mons cases. The summons proce ure iuers from the
v.
warrant procedure in some material points.
Under
The Delhi
the former procedure a charge is not to be framed
Administration
while under the latter a charge has to be framed under
.
-
s. 254 of the Coclv.
Similarly an accused person gets Ga;endragadkar J.
only one chance of cross-examining the prosecution
witnesses under the summons procedure whereas under
the warrant procedure he is entitled to cross-examine
the said witnesses twice, once before the framing of
the charge and again after the charge is framed. The
appellant concedes that the cases against him were
tried according to the summons procedure by reason
of s. 36 of the Act and the notification issued under it;
but he contends that the relevant provisions of the
Act are ultra vires and he alternatively argues that
the proceedings in respect of a substantial part were
continued under the summons procedure even after
the Act had expired and the relevant notifications had
ceased to be operative. That is how the validity of
the trial and of the orders of conviction and sentence
is challenged by the appellant.
It would be relevant at this stage to refer to the
material provisions of the Act and the relevant notifi- .
cations issued under it. The Act came into force on
March 29, 1949. It was passed to provide jfor special
measures to ensure public safety and maintenance of
·public order.
Section 36 of the Act prescribes the
procedure for the trial of specified offences ; under
sub-s. (1) all offences under this Act or under any
other law for the time being in force in a dangerously
disturbed area, and in any other area all offences
under this Act and any other offence under any other
law which the Provincial Government may certify to
be triable under this Act, shall be tried by the courts
according to the procedure prescribed by the Code,
provided that in all cases the procedure prescribed for
the trial of summons cases by ch. XX of the Code
shall be adopted, subject, in the case of summary
trials, to the provisions of ss. 263 to 265 of the Code.
For the avoidance of doubt sub-s. (2) provided that
92
SUPREME COURT REPORTS [1959] Supp.
x959
the provisions of sub-s. (1) shall apply to the trial of
offences mentioned therein committed before the com-·
Gopi;hand
mencement of this Act, and in a dangerously disturbed
The Delhi
area committed before the date of the notification
Administretion under s. 20, in respect of it. Under s. 20 the Prov in-
-
cial Government is authorised by notification to decGajena>agadka, J. ]are that the whole or any part of the Province as may
be specified in the notification to be a dangerously
disturbed area.
Four notifications were issued under s. 20.
By the
first notification issued on July 8, 1949, the whole of
the Province of Delhi was declared to be a dangerously
disturbed area by the competent authority. It appears
that on September 28, 1950, the said authority issued
the second notification cancelling the first not.ification
with effect from October l, 1950.
This notification
was followed by the third notification on October 6,
1950, which purported to modify it by inserting the
words " except as respect things done or omitted to be
done before the date of this notification " after the
words" with effect from October 1, 1950"; in other
words, this notification purported to introduce an exception to the cancellation of the first notification
caused by the second, and in effect it purported to
treat the Province of Delhi as a dangerously disturbed
area in respect of things done or omitted to be done
before the date of the said notification. The last notification was issued on April 7, 1951.
This notification
was issued by the Chief Commissioner of Delhi in
exercise of the powers conferred by sub-s. (I) of
s. 36 of the Act, and by it he certified as being triable
under the said Act in any area within the State of
Delhi not being a dangerously disturbed area the
following offences, viz., any offence under any law
other than the aforesaid Act of which cognisance had
been taken by any magistrate in Delhi before October
1, 1950, and the trial of it according to the procedure
prescribed in ch. 4 of the said Act was pending in any
court immediately before the said date and had not
concluded before the date of the certificate issued by
the notification.
Let us now mention the facts about the trial of the
(2) S.C.R. SUPREME COURT REPORTS
93
three cases against the appellant about which there is
I 959
no dispute. The First Information Report was filed
Gopi Chand
against the appellant on June 30, 1948. The trial
v.
commenced on July 18, 1949, and it was conducted
The Delhi
according to the procedure prescribed by ch. XX of Administration
the Code.
Some prosecution witnesses were examined
-
and cross-examined before January 26, 1950, and the Gajendragadkar f.
whole of the prosecution evidence was recorded before
August 14, 1951. The evidence for the defence was
recorded up to November 14, 1951, and the learned
magistrate pronounced his judgments in all the cases
on December 22, 1951.
For the appellant, Mr. Ram Lal Anand contends
that s. 36(1) of the Act is ultra vires because it violates
the fundamental right of equality before law guaranteed by Art. 14 of the Constitution.
His argument is
that since offences charged against the appellant were
triable under the warrant procedure under the Code,
the adoption of summons procedure which s. 36(1)
authorised amounts to discrimination and thereby
violates Art. 14. It is the first part of sub-s. (1) of
s. 36 which is impugned by the appellant. The effect
of the impugned provisions is that, after an area is
declared to be dangerously disturbocl, offences specified in it would be tried according to the summons
procedure even though they have ordinarily to be
tried according to warrant procedure. The question
is whether in treating the dangerously disturbed areas
as a class by themselves and in providing for one uniform procedure for the trial of all the specified offences
in such areas the impugned provision has violated
Art. 14.
The point about the construction of Art. 14 has
come before this Court on numerous occasions, and it
has been consistently held that Art. 14 does not forbid
reasonable classifications for the purpose of legislation.
In order that any classification made by the Legislature can be held to be permissible or legitimate two
tests have to be satisfied.
The classification must be
based on an intelligible differentia which distinguishes
persons or things grouped together in one class from
others left out of it, and the differentia must have a
94
SUPREME COURT.REPORTS [1959] Supp.
1959
reasonable or rational nexus with the object sought to
be achieved by the said impugned provision. It is
Gopi Chand
h
h
1.
.
f
h
v.
true t at, in t e app 10at10n o
t ese tests uniform
The Dethi
approach might not always have been adopted, or, in
Administration dealing with the relevant considern,tions emphasis
--
might have shifted; but the validity of the two tests
Gajendragadkar J. that have to be applied in determining the vires of the
impugned statute under Art. 14 cannot be doubted.
In the present case the classification has obviously
been made on a territorial or geographical basis. The
Legislature t bought it expedient to provide for the
speedy trial of the specified offences in areas which
were notified to be dangerously disturbed areas ; and
for this purpose the areas in the State have been put
in two categories, those that are dangerously disturbed
and others.
Can it be said that this classification is
not founded on an intelligible differentia ? In dealing
with this question it would be relevant to recall the
tragedy of the holocaust and the savage butchery and
destruction of property which afflicted several parts of
the border State of Punjab in the wake of the partition
of India. :Faced with the unprecedented
problem
presented by this tragedy, the Legislature thought that
the dangerously d4sturbed areas had to be dealt with
on a special footing; and on this basis it provided
inter alia for the trial of the specified offences in a
particular manner. That obviously is the genesis of
the impugned statl!te. That being the position, it is
impossible to hold that the classification between dangerously disturbed areas of the State on the one hand
and the non-disturbed areas on the other was not
rational or that it was not based on an intelligible
differentia.
Then again, the object of the Act was
obviously to ensure public safety and maintenance of
public order; and there can be no doubt that the
speedy trial of the specified offences had an intimate
rational relation or nexus with the achievement of the
said object. There is no doubt that the procedure
prescribed for the trial of summons cases is simpler,
shorter and speedier ; and so, when the dangerously
disturbed areas were facing the problem of unusual civil
commotion and strife, the Legislature was justified
(2) S.C.R. SUPREME COURT REPORTS
95
in enacting the first part of s. 36 so that the cases
z959
against persons charged with the commission of the
specified offences could be speedily tried and disposed
Gopi Chand
v.
of.
We are, therefore, satisfied that the challenge to
The Delhi
the vires of the first part of sub-s. (1) of s. 36 cannot be
Administration
sustained. In this connection we may refer to the
recent decision of this Court in Ram Krishna DalmiaGajendragadkar J.
v. Justice Tendolkar (1).
The judgment in that case
has considered the previous decisions of this Court on
Art. 14, has classified and explained them, and has
enumerated the principles deducible from them. The
application of the principles there deduced clearly
supports the validity of the impugned provisions.
It is, however, urged by Mr. Ram Lal Anand that
the decision of this Court in Lachmandas Kewalram
Ahuja v. The State of Bombay (2) supports his contention thats. 36(1) is invalid. We are not impressed by
this argument. In Ahuja's case (~)the objects of the
impugned Act were the expediency of consolidating
and amending the law relating to the security of the
State, maintenance of public order and maintenance
of supplies and services essential to the community in
the State of Bombay. These considerations applied
equally to both categories of cases, those referred to
the Special Judge and those l).Ot so referred; and so, on
the date when the Constitution came into force, the
classification on which s. 12 was based became fanciful and without any rational basis at all. That is why,
according to the majority decision s. 12 contravened
Art. 14 of the Constitution and as such was ultra vires.
It is difficult to see how this decision can help the
appellant's case. The impugned provision in the
present case makes no distinction between one class
of cases and another, much less between cases directed
to be tried according to the summons procedure before
January 26, 1950, and those not so directed. The
summons procedure is made applicable to all offences
under the Act or under any other law for the time
being in force; in other words, all criminal offences
are ordered to be tried according to the summons procedure in the dangerously disturbed areas. That being
(1) A.l.R. 1958 S.C. 538.
(2) [1952] S.C.R. 710, 73x.
•
96
SUPREME COURT REPORTS (1959] Supp.
'959
so, we do not think that the decision in Ahuja's case(')
has any application at all.
Thus we feel no difficulty
Gopi Chand
in holding that the impugned provision contained in
Th;Delhi
the first part ofs. 36(1) is constitutional and valid.
Administration
Then it is urged that the Act which came into force
on March 29, 1949, was due to expire and did expire
Gajendragadka1· J. on August 14, 1951, and- so the proceedings taken
against the appellant under the summons procedure
after the expiration of the tern porary Act were invaid.
It is argued that, in dealing with this point, it would
not be permissible to invoke the provisions of s. 6 of
the General Clauses Act because the said section deals
with the effect of repeal of permanent statutes.
This
argument no doubt is well-founded.
As Craies has
observed, "as a general rule, unless it contains some
special provisions to the contrary, after a temporary
Act has expired no proceedings can be taken upon it
and it ceases to have any further effect" (').
This
principle has been accepted by this Court in Krishnan
v. The State of Madras (3). "The general rule in regard
to a temporary statute is'', observed
Patanjali
Sastri J., " that, in the absence of special provision to
the contrary, proceedings which are being taken against a person under it will ipso facto terminate as
soon as the statute expires". It is true that the
Legislature can and often enough does avoid such an
anomalous consequence by enacting in the temporary
statute a saving provision, and the effect of such a
saving provision is in some respects similar to the
effect of the provisions of s. 6 of the General Clauses
Act.
As an illustration, we may refer to the decision
in Wicks v. Director of Public Prosecutions('). In that
case an offence against Defence (General) Regulations
made under the Emergency Powers (Defence) Act,
1939, was committed during the currency of the Act
and the offender was prosecuted and convicted after
the expiry of the Act. The contention raised by the
offender that his prosecution and conviction were
invalid because, at the relevant time, the temporary
(I) (1952] S.C.R. 710, 73r.
(2) Craies on" Statute Law", 5th Ed., p. 377.
(3) [1951] S.):.R. 621, 628.
(4) [1947] A.C. 362.
(2) S.C.R. SUPREME COURT REPORTS
97
. Act had expired was rejected in view ofthe provisions
r959
of s. 11, sub-s. 3, of the Act.
This sub-section had
Gopi Chand
provided that the expiry of the 1\ct shall not affect
v.
the operation thereof as respects things previously
The Delhi
done or omitted to be done.
The House of Lords
Administration
agreed with the view expressed by the Court of Crimi-
.
-
nal Appeal and held that it was clear that PariiamentGa;endragadkar J.
did not inten<l sub-s. 3 to expire with the rest of the
Act and that its presence in the statute is a provision
which preserved the right to prosecute after the date
of its expiry. Since the impugned Act does not contain an appropriate saving section the appellant would
be entitled to contend that, after the expiration of the
Act, the procedure laid down in it could no longer be
invoked in the cases then pending against the appellant.
We would like to add that, in the present case,
we are not called upon to consider whether offences
created by a temporary statute cease to be punishable
on its expiration.
For the respondent, Mr. Umrigar, however, contends
that the appellant is wrong in assuming that the Act
in fact expired on August 14, 1951.
He has invited
our attention to the provisions of Act No. I of 1951
by which the President extended some of the provisions of the earlier temporary Act in exercise of the
powers conferred by s. 3 of the Punjab State Legislature (Delegation of Powers) Act, 1951 (46 of 1951),
The provisions of that Act extended to the whole of
the State of Punjab and came into force on September
13, 1951. Mr. Umrigar relied on s. 16 of Act 46 of
1951 which repealed the East P,unjab Public Safety
Act, 1949 (Punj. 5 of 1949) and the East Punjab
Safety (Amendment) Ordinance, 1951 (5 of 1951) but
provided that notwithstanding such repeal any order
made, notification or direction issued, appointment
made or action taken under the said Act and in force
immediately before the commencement of this Act
shall, in so far as it is not inconsistent therewith,
continue in force and be deemed to have been made,
issued or taken under the corresponding provisions of
this Act. It m_ust, however, be pointed out that this
13
98
SUPREME COURT REPORTS [1959] Supp.
z959
Act does not continue the material provisions of the
impugned Act such as s. 20 and s. 36; and so s. 16
Gopi Chand
cannot be invoked for the purpose of validating the
The vDelhi
continuation of the subsequent proceedings against the
AdminislYation appellant in the cases then pending against him.
Besides, it is necessary to recall that s. 36(1) of the
Gajendrngadka. J. Act prescribed the application of the summons
procedure in. the trial of specified offences only in
dangerously disturbed areas ; and so, unless it is shown
that the relevant area could be treated as a dangerously disturbed area at the material time, s. 36(1)
would be inapplicable. In other words, the adoption
of the summons procedure would be justified only so
long as the area in question could be validly treated
as a dangerously disturbed area and it is therefore
pertinent to enquire whether at the relevant time the
area in question was duly and validly notified to be a
dangerously disturbed area.
We have already referred to the four notifications
issued-by the competent authority. The second notification purported to cancel with effect from October
1, 1950, the first notification which had declared the
whole of the Province of Delhi as a dangerously
disturbed area. A week thereafter, the third notification sought to introduce an exception to the cancellation as notified by the second notification. Apart
from the question as to whether, after the lapse of a
week, it was competent to the authority to modify the
second notification, it is difficult to understand how it
was within the jurisdiction of the notifying authority
to say that the whole of the Province of Delhi had
ceased to be a dangerously disturbed area " except as
respects things done or omitted to be done before the
date of this notification". Section 20 of the Act under
which this notification has been issued authorised the
Provincial Government to declare that the whole or
any part of the Province was a dangerously disturbed
area. The notification could declare either the whole
or a part of the Province as a dangerously disturbed
area; but s. 20 does not empower the notifying authority to treat any area as being dangerously disturbed in
respect of certain things and not dangerously disturbed
(2) S.C.R. SUPREME COURT REPORTS
99
in regard to others. Authority to declare areas as
I959
dangerously disturbe~ has no doubt been validly
d 1
b
Gopi Chand
e egated to the Provincial Government ;
ut no
v.
authority has been conferred on the delegate to treat
The Delhi
any area as disturbed for certain things and not disAdministration
turbed for others. We have, therefore, no doubt that
.
-
in introducing the exception to the cancellation effect- Ga;endragadkar f.
ed by the second notification the third notification has
gone outside the authority conferred by s. 20 and is
clearly invalid. If that be so, it must be held that
the whole of the Province of Delhi ceased to be a
dangerously disturbed area as from October, 1, 1950.
It was probably realised that the third notification
would be invalid and hence the fourth notification
was issued on April 7, 1951.
This purports to be a
certificate issued by the competent authority under
the second part of s. 36, sub-s. (1).
This certificate
seeks to achieve the same result by declaring that
though the State of Delhi was not a dangerously disturbed area, the offences specified in the notification
would nevertheless continue to be tried according to
the summons procedure.
This notification is clearly not authorised by the
powers conferred by the second part of s. 36, sub-s. (1).
What the Provincial Government is authorised to do
. by the second part of s. 36(1) is to direct that in areas
other than those which are dangerously disturbed all
offences under the Act and any other offence under
any other law should be tried according to the summons procedure. It is clear that the notification
which the Provincial Government is authorised to
issue in this behalf must relate to all offences under
the Act and any other offence under any other law.
In other words, it is the offences indicated which can
be ordered to be tried. under the summons procedure by the notification issued by the Provincial
Government.
The Provincial Government is not •
authorised to issue a notification in regard to the trial
of any specified case or cases; and since it is clear t,hat
the notification in question covers only pending cases
and has no reference to offences or class of offences
under the Indian Penal Code, it is outside the
•
100
SUPREME COURT REPORTS
[1959] Supp.
I959
authority conferred by the secoi;id part of s. 36(1). It
is obvious that the third and the fourth notifications
Gopi Chand
d
J
J
h' h '
v.
attempte
to cure t le anoma y w IC rt was appreThe Ddhi
hended would follow in regard to pending cases in the
Administ.ation absence of a saving section in the Act. If through inadvertence or otherwise the Act did not contain an
Gajendragadkar J. appropriate saving section, the defect could not be
cured by the notifications issued either under s. 20 or
under s. 36( l) of the. Act. In issuing the said notifications the competent authority was taking upon itself
the functions of the Legislature and that clearly was
outside its authority as a delegate either under s. 20
or under s. 36( l) of the Act.
Mr. Umrigar, then, argues that the competent authority was entitled to modify the notification issued by
it because the power to issue a notification must also
, involve the power either to cancel, vary or modify the
same; and in support of this argument Mr. U mrigar
relies on the provisions of s. 19 of the Punjab General
Clauses Act, 1898 (Punj. 1 of 1898) which in substance
corresponds to cl. 21 of the General Clauses Act, 1897
(10 of 1897). In our o.pinion, this argument is not
well-founded. Section 19 of the Punjab General
Clauses Act, like s. 21 of the General Clauses Act,
embodies a rule of construction, the nature and extent
of the application of which must inevitably be governed by the relevant provisions of the statute which
confers the power to issue the notification, The power
to cancel the notification can be easily conceded to the
competent authority and so also the power to modify
or vary it be likewise conceded ; but the said power
must inevitably be exercised within the limits prescribed by the provision conferring the said power. Now
s. 20 empowers the Provincial Government to declare
the whole or any part of the Province to be a dangerously disturbed area; and if a notification is i8sued
• in respect of the whole or any part of the Provi·
nee it may be either cancelled wholly or may be
modified restricting the declaration to a specified
part of the Province. The power to cancel or modify
must be exercised in reference to the areas of the
Province which it is competent for the Provincial
(2) S.C.R.
SUPREME COURT REPORTS
101
Government to specify as dangerously disturbed. -The
1 959
power to modify cannot obviously include the power
Gopi Chand
to treat the same area as dangerously disturbed for
"·
persons accused of crimes committed in the past and
The Delhi
not disturbed for others accused of the same or similar
Administration
offences committed later. That clearly is a legislative
~
function which is wholly outside the authority confer- Gajendragadkar f.
red on the delegate by s. 20 or s. 36(1).
We must,
therefore, hold that the third and the fourth notifications are invalid and as a result of the second notification the whole of the Province of Delhi ceased to be a
dangerously disturbed area from October 1, 1950.
This position immediately raises the question about
the validity of the proceedings continued against the
appellant in the three cases pending against him under
the summons procedure.
So. long as the State of Delhi
was validly notified to be a dangerously disturbed area
the adoption of the summons procedure was no doubt
justified and its validity could not be impeached; but,
with the cancellation of the relevant notification
s. 36(1) of the Act ceased to apply and it was necessary that as from the stage at which the cases
against the appellant then stood the warrant procedure
should have been adopted; and since it has not been
adopted the trial of the three cases is invalid and so
the orders of conviction and sentence imposed against
him are void. That in brief is the alternative contention raised before us by Mr. B,am Lal Anand.
Mr. Umrigar, urges that since the trial had validly
commenced under the summons procedure, it was
unnecessary to change the procedure after October I,
1950, and his case is that the trial is not defective in any
manner and the challenge to the validity of the impugned orders of conviction and sentence should not be upheld. In support of his argument Mr. Umrigar has invit·
ed our attention to some decisions which may now be
considered. In Srinivasachari v.1'he Queen (1) the accused was tried by a Court of Sessions in December 1882
on charges some of which were triable by assessors
and others by jury. Before the trial was concluded
the Code of Criminal Procedure, 1882, came into force
(1) [1883] I.L.R. 6 Mad. 336.
102
SUPREME COURT REPORTS (1959] Supp.
'959
and under s. 269 of the Code all the said charges
became triable by jury. Section 558 of the Code had
Gopi 2and
pr6vided that the provision$ of the new Code had to
The Delhi
be applied, as far as may be, to all cases pending in
Administrntion any criminal court on January 1, 1883. The case
-
against the accused which was pending on the 'date
Gajendrngadkar f. when the new Act came into force was submitted
to the High Court for orders ; and the High Court
directed that by virtue of s. 6 of the General Clauses
Act the trial must be conducted under the rules of
procedure in force at the commencement of the trial.
It is clear that the decision of the High Court was
based both on the specific provisions of s. 558 which
provided for the application of the new Code to
pending cases only as far as may be and on the principles laid down in s. 6 of the General Clauses Act. That
is why that decision cannot assist the respondent since
s. 6 of the General Clauses Act is inapplicable in the
present case.
•
The decision on Mulcund v. Ladu (1) is also inapplicable for the same reasons. It was a case where one
act was repealed by another and so the question as to
the applicability of the provisions of the latter act had
to be considered in the light of the provisions of s. 6 of
the General Clauses Act. The judgment in terms does
not refer to s. 6 but the decision is obviously based on
the principles of the said section.
Then Mr. Umrigar relied on Gardner v. Lucas (2). In
that case s. 39 of the Conveyancing (Scotland) Act,
1874, with which the court was dealing affected not
only the procedure but also substantive rights; and
so it was held that the said section was not retrospective in operation. This decision is wholly inapplicable
and cannot give us any assistance in the present case.
Mr. U mrigar also placed strong reliance on a decision
of the Full Bench of the Punjab High Court in Ram
Singh v. The Crown('). That decision does lend
support to Mr. Umrigar's contention that the continuation of the trial under the summons procedure did not
introduce any infirmity and was in fact appropriate
(1) [1901] 3 Born. L.R. 584.
(2) [1878] 3 A.C. 582.
(3) A.LR. 1950 East Punjab 25.
(2) S.C.R. SUPREME COURT REPORTS
103
and regular.
The case against Ram Singh had
x959
been sent to the Court of Session under the provif
h
P
b P
Gopi Chand
sions of s. 37 (1) o t e
unja
ublic Safety Act,
v.
1948 (Punj. 2 of 1948) at a time when Ludhiana
The Delhi
District was declared to be a dangerously disturbed
Administration
area; before, however, the trial in the Court of Session
-
actually commenced the District ceased to be a Gajendragadkar J.
dangerously disturbed area.
Even~so, it was held that
the Sessions Judge should continue with the trial
under the provisions of s. 37 (1) of the Act and not
under the ordinary provisions of the Code regarding
sessions trial, and should follow the procedure prescribed for the trial of summons cases. It appears that
the judgment in the case proceeded on the assumption
tha.t the principles enacted by s. 6 of the General
Clauses Act were applicable, and so, since at the commencement of the proceedings the adoption of the
summons procedure was justified under s. 37 (1) of the
Act, the trial could continue under the same procedure
even after the area had ceased to be a dangerously
disturbed area. In our opinion, it is erroneous to
apply by analogy the provisions of s. 6 of the General
Clauses Act to cases governed by the provisions of a
temporary Act when the said Act does not contain the
appropriate saving section. ]'ailure to recognise the
difference between cases to which s. 6 of the General
Clauses Act applies and those which are governed by
the provisions of a temporary Act which does not contain the appropriate saving section has introduced an
infirmity in the reasoning· adopted in the judgment.
Besides, the learned judges, with respect, were in
error in holding that the application of the ordinary
criminal procedure was inadmissible or impossible after
the area ceased to be dangerously disturbed. No
doubt the learned judges recognised the fact that
ordinarily the procedural law is retrospective in operation, but they thought that there were some good reasons against applying the ordinary procedural law to
the case, and that is what influenced them in coming
to the conclusion that the summons procedure had to
be continued even after the area ceased to be dangerously disturbed. In this connection the learned
I959
104
·SUPREME COURT REPORTS [1959] Supp.
judges referred to the observation in Maxwell that
"the general principle, however, seems to be that alter.
Gopi Chand
ations in procedure are retrospective, unless there
be some good reason against it (1) ; and they also relied
The Delhi
Administrntion on the decision of the Privy Council in Delhi Cloth and
v.
General Mills Go., Ltd. v. Income-tax Commissioner,
Gajendragadkar ;. Delhi(') in which their Lordships have referred with
approval to their earlier statement of the law in the
Colonial Sugar Refining Go. v. Irving(') that" while
provisions of a statute dealing merely with matters
of procedure may properly, unless that construction
be textually inadmissible, have retrospective effect
attributed to them".