# The appear to have misconceived their v. The State of

- **Citation:** [1953] 1 S.C.R. 1188
- **Court:** Supreme Court of India
- **Decided:** 1950-04-16
- **Case number:** Criminal Appeal No. 7 of 1951
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-appear-to-have-misconceived-their-v-the-state-of-108
- **Pages:** 33

## Headnote

•
•
1953
1188
SUPREME COURT REPORTS
[1953]
that basis against respondent 3 who is pnly a nominat·
ed member.
N ain Sukh Da/J
and Another
The petitioners appear to have misconceived their
v.
The State of
U ttar Pradesh
and Others.
Patanjali Sastri
0.J.
1953
.ilfay 22
remedy and their application under article 32 must
fail.
The petition is dismissed with costs, one set.
Petition dismissed.
Agent for the petitioners: K. L. 11fehta.
Agent for respondent No. 1 : 0. P. Lal.
Agent for respondent No. 4: S. P. Varma.
RAO SHIV BAHADUR SINGH AND ANOTHER
v .
THE STATE OF VINDHYAPRADESH.
PATANJALI SASTm C. J., Mt:KHERJEA, VIVIAN BosE,
GHULAM HASAN and JAGANNADHA DAS JJ.
Constitution of India, 1950, Art.1. 14, 20-Acts committed in
Rewa State in 1949 before Vindhya. Pradesh Ordinance No. XL VIII
of 1949-Charge mider said Ordinance and tr-ial under Vindh:yr>
Pradesh Criininr<l Law Amendme1't (Special Courts) Ordinance (V
of 1949) -Validity of trial and conviction-F\tncla.>nental rights to
equality of laws and against conviction nnrler ex post facto lawScope of Arts.14 and 20-Integration of States and Vi·ndhwi Pradesh Ordinances, effect of.
The appellants, who were during the relevant period, the
~Iiuister for Industries and Secretary to the Government respectively of the State of Vindbya Pradesh, were tried by a Special
Judge under the Vindhya Pradesh Criminal Law Amendment
(Special Courts) Ordinance (No. V of 1949) for charges under
ss. 120-B, 16l, 465 and 466 of the Indian Penal Code as adapted
by the Vindhya Pradesh Ordinance No. XLV III of 1949, the facts
alleged against them being that they entered into a conspiracy in
February, 1949, at Rewa to obtain illegal gratification for revoking
a previous Government Order and in pursuance of that conspiracy
the second appellant domanded such gratification on 8th March,
1949, at Rewa and the first appellant received Rs. 25,000 towards
it on the 11th April, 1949, at New Delhi and forged certain documents purporting to be official orders.
They were acquitted by
the Special Judge but on appeal the first appellant was convicted
by the Judicial Commissioner 011 all t.he charges and the second
•ppellanl; on the clrnrges under ss. 120-13 and 161 of the Indian
•
• •
8.C.R.
SUPREiVIE COURT REPOHTS
1189
Penal Code.
Tqe validity of the trial and convictions was cha!-
1963
longed on appeal to the Supreme Court inter alia on the ground
that they contrnvenecl arts. 14 and 20 of the Constitution and on
Rao Shiv
the ground that no appeal lay to the Judicial Commissioner from Bahadur Singh
the order of the Special Judge.
and Another
Held (i) that, as s. 5 (2) of the Vindbya Pradesh Ordinance,
Th ;; t if
1949. provided that the provisions of the Criminal Procedure Code v· d~ ~·~ h
shall apply to the proceedings of a Special Court and that the '" ya ra
8
Special Judge shall be deemed to be a court of session, the normal
right of appeal provided by s. 410 ors. 417, as the case may be, of
the Criminal Procedure Code must be taken to have been expressly
provided by reference, and the order of the Special Judge was
appealable to the Judicial Commissioner.
Attorney-General v. Herman James Sillem (11 H. L. C. 704)
distinguished.
(ii) That the trial of the appellants did not contravene art.14
of the Constitution inasmuch as in the Vindbya Pradesh Criminal
Procedure Code las amended) which was in force at the commencement of the trial (namely 2nd December, 1949) there was no
provision requiring all trials before Courts of Sessions to be either
by jury or with the aid of assessors, and the fact that the entire
Criminal Procedure Code including s. 268 thereof was extended to
Vindbya Pradesh on the 16th April, 1950. by the Part C States
(Laws) Act, 1950, could not affect the validity of the trial after
that date as s. 4 of the said Act provides that the repeal of the
earlier law by that Act shall not affect pending proceedings, and
pending proceedings being a class in themselves, a provision saving
such proceedings could not

## Text

_Characters 0–39,607 of 72,774. This is a partial read: ask again with offset=39607 for what follows._

•
•
1953
1188
SUPREME COURT REPORTS
[1953]
that basis against respondent 3 who is pnly a nominat·
ed member.
N ain Sukh Da/J
and Another
The petitioners appear to have misconceived their
v.
The State of
U ttar Pradesh
and Others.
Patanjali Sastri
0.J.
1953
.ilfay 22
remedy and their application under article 32 must
fail.
The petition is dismissed with costs, one set.
Petition dismissed.
Agent for the petitioners: K. L. 11fehta.
Agent for respondent No. 1 : 0. P. Lal.
Agent for respondent No. 4: S. P. Varma.
RAO SHIV BAHADUR SINGH AND ANOTHER
v .
THE STATE OF VINDHYAPRADESH.
PATANJALI SASTm C. J., Mt:KHERJEA, VIVIAN BosE,
GHULAM HASAN and JAGANNADHA DAS JJ.
Constitution of India, 1950, Art.1. 14, 20-Acts committed in
Rewa State in 1949 before Vindhya. Pradesh Ordinance No. XL VIII
of 1949-Charge mider said Ordinance and tr-ial under Vindh:yr>
Pradesh Criininr<l Law Amendme1't (Special Courts) Ordinance (V
of 1949) -Validity of trial and conviction-F\tncla.>nental rights to
equality of laws and against conviction nnrler ex post facto lawScope of Arts.14 and 20-Integration of States and Vi·ndhwi Pradesh Ordinances, effect of.
The appellants, who were during the relevant period, the
~Iiuister for Industries and Secretary to the Government respectively of the State of Vindbya Pradesh, were tried by a Special
Judge under the Vindhya Pradesh Criminal Law Amendment
(Special Courts) Ordinance (No. V of 1949) for charges under
ss. 120-B, 16l, 465 and 466 of the Indian Penal Code as adapted
by the Vindhya Pradesh Ordinance No. XLV III of 1949, the facts
alleged against them being that they entered into a conspiracy in
February, 1949, at Rewa to obtain illegal gratification for revoking
a previous Government Order and in pursuance of that conspiracy
the second appellant domanded such gratification on 8th March,
1949, at Rewa and the first appellant received Rs. 25,000 towards
it on the 11th April, 1949, at New Delhi and forged certain documents purporting to be official orders.
They were acquitted by
the Special Judge but on appeal the first appellant was convicted
by the Judicial Commissioner 011 all t.he charges and the second
•ppellanl; on the clrnrges under ss. 120-13 and 161 of the Indian
•
• •
8.C.R.
SUPREiVIE COURT REPOHTS
1189
Penal Code.
Tqe validity of the trial and convictions was cha!-
1963
longed on appeal to the Supreme Court inter alia on the ground
that they contrnvenecl arts. 14 and 20 of the Constitution and on
Rao Shiv
the ground that no appeal lay to the Judicial Commissioner from Bahadur Singh
the order of the Special Judge.
and Another
Held (i) that, as s. 5 (2) of the Vindbya Pradesh Ordinance,
Th ;; t if
1949. provided that the provisions of the Criminal Procedure Code v· d~ ~·~ h
shall apply to the proceedings of a Special Court and that the '" ya ra
8
Special Judge shall be deemed to be a court of session, the normal
right of appeal provided by s. 410 ors. 417, as the case may be, of
the Criminal Procedure Code must be taken to have been expressly
provided by reference, and the order of the Special Judge was
appealable to the Judicial Commissioner.
Attorney-General v. Herman James Sillem (11 H. L. C. 704)
distinguished.
(ii) That the trial of the appellants did not contravene art.14
of the Constitution inasmuch as in the Vindbya Pradesh Criminal
Procedure Code las amended) which was in force at the commencement of the trial (namely 2nd December, 1949) there was no
provision requiring all trials before Courts of Sessions to be either
by jury or with the aid of assessors, and the fact that the entire
Criminal Procedure Code including s. 268 thereof was extended to
Vindbya Pradesh on the 16th April, 1950. by the Part C States
(Laws) Act, 1950, could not affect the validity of the trial after
that date as s. 4 of the said Act provides that the repeal of the
earlier law by that Act shall not affect pending proceedings, and
pending proceedings being a class in themselves, a provision saving
such proceedings could not contravene art. 14.
Syed Qasim Razvi v. State of Hyderabad ([1952] S.C.R. 710)
referred to.
(iii) The prohibition contained in art. 20 of the Constitution
against convictions and subjections to penalty under ex post facto
laws is not confined in its operation to post-Constitution laws but
applies also to ex post facto laws passed before the Constitution
in their application to pending proceedings.
[The difference
between Indian and American law in this respect pointed out.]
(iv) Article 20, however,
prohibits only conviction or
sentence under an ex post facto law, and not the trial thereof.
Such trial under a procedure different from what obtained at the
time of the offence or by a court different from that which had
co npetence al that time cannot ipso facto be held to be unconstitutional.
(v) The expression" law in force" in art. 20 means a law
which was in fact in existence and in operation at the time of the
co1nmission of the offanoe (or, in other words, the the11 e:-dsting
iii$
•
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1190
SUPREME COURT REPORTS
[1953]
1953
law) and does not include a law which by subsequent legislation
bas to he deemed to have been in force •t that tii:ne.
n
11
h ""d Shsfr 1
(vi) Though the charges against the appellants were specifia a ur 1ngi
·
ff
0'
d A
th ·
cally framed with reference lo the o ence under
rdmance
an
no "e''
·
No. XLVIIIof 1949, as the acts charged as offencesd1dnot become
Tl :i· 1
such only hy virtue al the said Ordinance and as they were offenv. 'h"
Pa' dof h ces even under the law which prevailed at the time when the acts
m" '1"
' 0 "
·
'
d th
Id
t b
d d
· t'
f
·
were committe ,
ey cou
no
e regar e
as conv1c ions or
violation of a law which was not in force at the time of the commission of the acts charged.
(vii) By virtue of the Orders of the Regent of Rewa of 1921
and 1922, the Indian Penal Code and the Criminal Procedure Code
with the necessary adaptations were in force in the Rewa State and
either became extended to tho entire Vindhya Pradesh State from
the 9th August, 1948, by Ordinance No. IV of 1948, or continued
to be in force in the Rewa portion of that State by virtue of the
principle laid down in 11fa.yor of Lyons v. East India Co. (1 M.I.A.
175), and were the penal law in force in the relevant area when
the acts were committed.
(viii) The amendment of the definition of "public servant" in
s. 21 of the Penal Code, made by Ordinance No. XLVIII of 1949
brought about no substantial change in the position of the first
appellant as a public servant.
(ix) The Ruler of the Rewa State had prior to 1947 the
authority to pass extra.territorial laws relating to offences committed by his own subjects and vesting in his own courts the
power to try them, that power was not in any way curtailed either
by the integration covenant or the Instrument of Accession, and
ss. 3 and 4 of the Indian Penal Code and s. 188 of the Criminal
Procedure Code, at least in so far as they affected the subjects
and courts of the State, were \vi thin the legislative competence of
the State.
(x) The conviction of the appell•nts in respect of all the
offences with which they were charged including the extra-territorial offence said to have been committed by the first a.ppellant at
New Delhi was not illegal under art. 220 on the ground that the
conviction was under an ex z)ost facto la'\\'.
CRUUNAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 7 of 1951. Appeal under article 134 (l)(c)
of the Constitution of India from the Judgment and
Order dated the 10th March, 1951, of the Court of the
.Judicial Commissioner, Vindhyft Pradesh, Rewa, in
Criminal Appeal No. 81. of 1950, arising out of the
Judgment and Order dated the 26th July, 1950, of the
Court of Special Judge. Rewa, in Criminal Case No, l
()f 1949,
•
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S.C.R.
SUPREME COURT REPORTS
1191
G. S. Pathp,k (K. B. Asthana, with him), for the
appellant No. 1.
K. B. Asthana, for appellant No. 2.
M. G. Setalvad, Attorney-General for India, (G. N.
Joshi, with him), for the respondent.
1953. May 22.
The Judgment of the
dell vered by
Court was
JAGANNADHADASJ.-This is an appeal against the
judgment of the Judicial Commissioner of Vindhya
Pradesh dated 10th March, 1951, by leave granted
under article 134( 1) ( c) of the Constitution. The first
and the second appellants were at the material period
of time respectively the Minister for Industries and the
Secretary to the Government, Commerce and Industries Department of the then United State of Vindhya
Pradesh. The case for the prosecution against them
is as follows : In the State of Panna (one of the component units of the United State of Vindhya Pradesh)
there are certain diamond mines. By an agreement
dated the 1st of August, 1936, between the Panna
Dur bar on the one part and the Panna Diamond Mining
Syndicate on the other part, the latter obtained a
lease for carrying out diamond-mining operations for a
period of 15 years. It appears that on or about the
31st October, 1947, the Panna Durbar directed the
stoppage of the mining work on the ground that the
Syndicate was not carrying on the operations properly.
Since then the Syndicate was making strenuous efforts
to obtain cancellation of the said order. It is alleged
that the two appellants in the course of these
attempts, with which, at the material time, they were
concerned in their official capacity, entered into a conspiracy about the beginning of February 1949 at
Rewa (within the United State ofVindhya Pradesh), to
obtain illegal gratification for the purpose of revoking
the previous order of stoppage of mining work. In
pursuance of the said conspiracy it is alleged that the
second appellant demanded on 8th March, 1949, at
Rewa illegal gratification from one Xt1gindils 1Iehta, a
•
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196J
Rao Shiv
Bahadhur Singh
and Another
v.
The State of
V indhya Pradesl~.
J agannadh.00.
J.
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1192
SUPREME COURT REPORTS
[1953]
1963
representative of the Panna Diamond ~fining Syndi-
.
cate, and that later on, on 11th April, 1949, the first
B :";
81
~" h appellant, in fact, received a sum of Rs. 25,000 to-
:n~ ~:wt~::~ wards it at the Constitution House in New Delhi and
v.
forged certain documents purporting to be orders
The State of passed in official capacity and intended to confer some
Vindhya Pradesh. advantages or benefits on the Panna Diamond Mining
--
Syndicate.
J agannadhadas
J.
On these allegations the two appellants were
charged for criminal conspiracy and for the taking of
illegal gratification by a public servant for doing an
official act and for the commission of forgery in connection therewith.
The charges
were
under
sections 120-B, 161, 4n5 and 466, Indian Penal Code, as
adapted by the Vindhya Pradesh Ordinance No.
XLVIII of 1949, and the trial was held by a Special
Judge under t,he Vindhya Pradesh Criminal Law
Amendment (Special Court) Ordinance No. V of 1949.
At the trial both the appellants were acquitted. The
State filed an appeal to the Judicial Commissioner
against the same whereupon both were convicted
under sections 120-B and 161, Indian Penal Code (as
adapted). In addition, the first, appellant was convicted under sections 465 and 466, Indian Penal Code
(as adapted). He was sentenced to rigorous imprisonment for three years and to a fine of .Rs. 2,000 under
section 120-B and to rigorous imprisonment for three
years under section 161, Indian Penal Code, the two
sentences to run concurrently. In respect of his conviction under sections 465 and 466 no separate sentence
was awarded. The second appellant was sentenced to
one year's rigorous imprisonment and a fine of
Rs. 1,000 under section 120-B, but under section 161
no separate sentence was awarded. The validity of
the convictions and sentences has been challenged on
the ground that there has been infringement of
articles 14 and 20 of the Constitution.
In addition, a further point has been raised before
us by leave that no appeal lay to the Judicial Commissioner from the acquittal by the special Judge. It
is convenient to deal with this point in the first
•
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s.c.R.
SUPREME COURT REPORTS
1193
instance. 'fhe question raised depends 011 a construction
1953
of the provisions of the Vindhya PradeKh Criminal Law
Ra Sh.
Amendment (Special Court) Ordinance No. V of 1949 Bahad:r ;;~•uh
dated 2nd December, 1949. By section 2 thereof the
and Another
Vindhya Pradesh Government was given the power by
v.
notification to constitute Special Courts of criminal .. 2'he Stat• of
jurisdiction within the State and by section 3 to hndhya Pradesh.
appoint a Special Judge to preside J)ver the Special
-
C
B
·
4 h Q
b • d Jagannadhadas
ourt.
y sect10n . t e overnment was ant or1se
J.
to issue notifications from time to time allotting cases
for trial by the Special Judge in respect of charges for
offences specified in the Schedule to the Ordinance.
· Sections 5( 1 ), 7 and 8 provide certain departures from
the normal procedure or evidence, and section 9 provides for special punishment. Section 5, sub-section
(2) provides as follows :-
"Save as provided in sub-section (1) the provisions
of the Code of Criminal Procedure, as adapted in
Vindhya Pradesh, shall, so far as they are not
inconsistent with this Ordinance, apply to the proceedings of a Special Court, and for the purposes of the
said provisions, the Court of the Special Judge shall
be deemed to be a Court of Session trying cases without a Jury or without the aid of Assessors, and a
person conducting a prosecution before a Speci:.l
Judge shall be deemed to be a Public Prosecutor."
Section 6 provides as follows :-
"The High Court may, subject to the provisions
of section 7 regarding transfer of cases, exercise, so
far as they may be applicable, all the powers conferred by Chapters XXXI and XXXII of the Code of
Criminal Procedure, as adapted in Vindhya Pradesh,
on a High Court as if the Court of the Special Judge
were a Court of Session trying cases without a
Jury within the local limits of the High Court's jurisdictions."
The argument oflearned counsel for the appellants
is that section 6 above quoted provides only for the
powers of the High Court on appeal preferred
to it, but that there is no provision at i:tll conferring on an aggrieved party a right of appeal from
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il94
SUPREME COURT REPORTS
[1953]
1953
the judgment and order of the Sp<icial Judge to
R
Sh .
the High Court. It is contended that the absence
ao
iv
•
l
Bahadur Singh ?f a nght ~f appea may be a lacuna, bll:t
th~t
and Another masmuch as rt has not been expressly provided, rt
v.
cannot be implied from the fact that a provision has
_The State of been made for the exercise of powers by the appellate
VindhyaPradesh court. It is conceded that this line of argument, if
J -;h d accepted, would .result in there being no appeal even
agan";. " as as against a conviction. But it is urged that it is the
inevitable consequence of the lacuna. It appears however on careful consideration that no such lacuna
exists and that sub-section (2) of section 5 of the
Vindhya Pradesh Ordinance reasonably construed is
an express provision conferring a right of appeal
to the aggrieved party, whether an accused or the
State, against the judgment of the Special Judge. The
section, in terms, says that the provisions of the Code
of Criminal Procedure as adapted and in so far as they
are not inconsistent with the Ordinance shall apply to
the proceedings of a Special Court, and that for the
purposes of the said provisions (that is, the adapted
provisions which are not inconsistent and hence apply)
the court of a Special Judge is to be deemed a Court of
Session. The provisions of the Criminal Procedure
Code relating to the right of appeal are sections 410
and 417, and there is nothing in the Vindhya Pradesh
Ordinance which is inconsistent with the application of
these two sections to the proceedings of a Special Court
treated as a Court of Session for the purpose. It
follows that the said proceedings are subject to appeal.
But it is urged that the provisions of the Criminal
Procedure Code that are attracted by sub-section (2) of
section 5 of the Vindhya Pradesh Ordinance to the
proceedings of a Special Court are only those provisions
which relate to the procedure before the Special Court
itself in respect of the proceedings before it and not all
the provisions which are connected with or related to
those proceedings. There is, in our opinion, no warrant for putting such a limited construction on this
sub-section. The only limitation on the application of
the provisions of the Cl'iminal Procedure Code to the
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S.C.R.
SUPREME COURT REPORTS
1195
proceedings of the Special Court is the one arising from
J9b3
the existence of any inconsistent provisions in the
R
S .
Ordina~ce and not with reference to the conduct of t?e Bah:U.:, ;;,,gh
proceedmgs before that very court. Once the Spemal
and Anothe~
Court is to be deemed a Court of Session the normal
v.
right of appeal provided by section 410 or section 417 . The State of
as the case may be, mnst be taken to have been VindhyaPradesl"
expressly provided by reference and not as arising by J
-
'
] '
·
agannadhadas
mere imp wat1on.
J.
Learned counsel strongly relied on Attorney-Genera.l
v. Herman James Sillem(1) to show that a provision
such as the above was meant only to regulate the
proceedings in a case within the four walls or limits of
the court. The statutory provision which came up
for construction in that case was however very differently worded, and was meant to regulate "the process, practice, and mode of pleadings,'' i.e., the
procedurf' in the court and not "the proceeding" of the
court. While, no doubt, it is not permissible to supply
a clear and obvious lacuna in a statute and imply a
right of appeal, it is incumbent on the court to avoid a
construction, if reasonably permissible on the language, which would render a part of the statute devoid
of any meaning or application. The construction
urged for the appellant renders section 6 futile and
leaves even a convicted person without appeal. We
have no hesitation in rejecting it.
Out of the constitutional points raised, that which
relates to the alleged violation of article 14 has no
substance. In reliance on Lakshmandas Ahuja's case(')
it was sought to be argued that though the trial in this
case under Ordinance No. V of 1949 related to offences
committed prior to the commencement of the Constitution, the continuance thereof under the special
procedure prescribed by the Ordinance was discriminatory and hence unconstitutional. It is to be noticed
that the trial commenced on 2nd December, 1949, the
acquittal by the Sessions Judge was on 26th July,
1950, and the conviction by the Judicial Commissioner
on appeal therefrom was on 10th March, 1~51. In the
(1) 10 H, L. Cas. 704; It E. R. 1200,
(2) [1952] S.C.R. 710.
•
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1196
SUPREME COURT REPORTS
[1953]
T9S3
light, however, of the later decision of the Supreme
Rao Shiv
Court in Syed Qasim Razvi v. The 8tcite of Hyderabad('),
s .. hadur Singli it was recognised that this point was unsubstantial,
and Anoth,,·. unless some material prejudice in the matter of prov.
cedure was shown.
In this context the learned
J'he State 0!
Attorney-General brought to our notice that even
Vindhya Pradesh. before the Criminal Law Amendment (Special Court)
Jagoi;;:;,,hadas Ordinance No. V of 1949, dated 2nd December, 1949,
·
J.
came into force there was in operation the Code of
Criminal Procedure Adaptation (Amendment) Ordinance No. XXVIII ofl949 dated 3rd May, 1949, whereby section 268, Criminal Procedure Code, requiring all
trials before a Court of Session to be either by jury or
with the aid of assessors was deleted from the Vindhya
Pradesh Criminal Procedure Code as adapted. Therefore by the date when the trial in the present case
commenced before the Special ·Court there was no substantial or material prejudice caused to an accused
who was tried by the Special Court, and the continuance of such procedure after the Constitution came
into force would make no serious difference. What,
however, was relied upon was a subsequent change in
the situation as a result of section 3 of Central Act
No. XXX of 1950 [Part C States (Laws) Act, 1950],
whereby Acts and Ordinances specified in the Schedule
to the Merged States (Laws) Act, 1949 (LIX of
1949) were extended to Vindhya Pradesh, and one of
the Acts specified in that Schedule was the entire
Code of Criminal Procedure.
This therefore had the
effect of reviving section 268, Criminal Procedure Code,
in its application to Vindhya Pradesh, repealing by
section 4 of the Act the pre-existing law in this behalf
in the State. It was accordingly argued that to the
l!xtent the trial continued under the old procedure
subsequent to 16th April, 1950, there were inevitable
discrimination and necessary prejudice. This argument, however, overlooks the fact that the repealing
section 4 of Act No. XXX of 1950 contained a saving
clause providing that "the repeal shall not affect (a)
the previous operation of any such law, or (b) any
penalty, forfeiture or punishment incurred in respect
(1) [1952] S. C. R. 71<"
•
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S.C.R.
SUPREME COURT REPORTS
1197
of any offence.committed against any such law, or (c)
1963
any investigation, legal proceeding or remedy in resR
sh·
pect of any such penalty, forfeiture or punishment, Baha~:r ;~ngh
and any such investigation, legal proceeding or remedy
and Another
may be instituted, continued or enforced, and any such
v.
penalty, forfeiture or punishment may be imposed, as .The State 0!
if this Act had not been passed.'' It is to be noticed Vindhya Pradesh.
that the saving provision applies equally to proceedings Jagannadhadas
previously commenced and then pending, whether
J.
before the special court or the ordinary 0ourt, and that
therefore in respect of two persons equally situated in
this behalf, one under trial by the ordinary court and
the other by the special court, the position continues
what it was before, i.e., the continuance of trial does
not involve any substantially discriminatory and prejudicial procedure. Learned counsel however attempted to argue that the very saving clause was a discriminatory provision and hence unconstitutional and
invalid. But there is no reason, \rhy pending proceedings cannot be treated by the legislature as a class
by themselves having regard to the exigencies of
the situation which such pendency itself calls for.
There can arise no question as to such a saving provision infringing article 14 so long as no scope is left
for any further discrimination inter se as between
persons affected by such pending matters.
The next and the only serious question that arises in
this case is with reference to the objections raised in
reliance on article 20 of the Constitution. This question arises from the fact that the charges as against
the two appellants, in terms, refer to the offences
committed as having been under the various sections
of the Indian Penal Code as adapted in the United
States of Vindhya Pradesh by Ordinance No. XLVIII
of 1949. This Ordinance was passed on llth September, 1949, while the offences themselves are said to
have been committed in the months of Fehrnary,
March and April, 1949, i.e., months prior to the Ordinance. It is nrged thernfore that the convictions in this
case which were after t lw Corrnhtution r"~nie. into fon'u
J.).i
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1198
Sl!PREME COURT REPORTS
[1953]
1953
are in respect of an ex post facto law creiiting offences
after the commission of the acts charged as such
1-tao Shiv
llahadur Singh offences and hence unconstitutional. This contention
and Another raises two important questions, vfa., (1) the proper
v.
construction of article 20 of the Constitution, and
The State 01 (2) whether the various acts in respect of which the
Viudhya I'radeBh. appellants were convicted constituted offences in this
Jagannruthadas area only from the date when Ordinance No. XLVIII
J.
of 1949 was passed or were already so prior thereto.
Article 20(1) of the Constitution is as follows:
"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."
This article in its broad import has been enacted
to prohibit convictions and sentences under ex post facto
laws. The principle underlying such prohibition has
been very elaborately discussed and pointed out in the
very learned judgment of Justice 'Villes in the well
known case of Phillips v. Eyre(') and also by the
Supreme Court of U. S. A. in Calder v. Bull (2). In
the English case it is explained that ex post facto laws
are laws which voided and punished what had been
lawful when done. There can be no doubt as to the
paramount importance of the principle that such ea:
post facto laws, which retrospectively create offences
and punish them are bad as being highly inequitable
and unjust. In the English system of jurisprudence
repugnance of such laws to universal notions of fairness and justice is treated as a ground not for invalidating the law itself but as compelling a beneficent
construction thereof where the language of the statute
by any means permits it.
In the American system,
however, such ex post facto laws are themselves rendered invalid by virtue of article l, sections ll and 10
of its Constitution. It is contended by the learned
Attorney-Genera! that article 20 of the Constitution
(1) (1870) 6Q.B.D. 1, at 13 and 25.
(2) 3 Dallas 386; I Lav.', Edition 64S at 6491
•
S.C.R.
SUPREME COURT REPORTS
1199
was meant t<> bring about nothing more than the
i:i.;3
invalidity of such ex post facto laws in the post-Con-
.
t't t'
. d b
h
h
I'd'
f h
C
Raa Sim•
s ~ u ~on per10
ut t at t e va 1 1ty o t e pre- onJJahadur Sinylt
stitut10n laws in this behalf was not intended to be
and Another
affected in any way. The case in Keshavan 1vladhavan
v.
11l enon v. The 8tate of Bombay ( 1) has been relied on to
2'he state of
show that the fundamental rights guaranteed under Vindhya Pradesh·
the Constitution have no retrospective operation, and J
-dhad
that the invalidity of laws brought about by article 13
agan~;.
08
( 1) of the Constitution relates only to the future operation of the pre-Constitution laws which are in violation of the fundamental rights. On this footing it
was argued that even on the assumption of the convictions in this case being in respect of new offences
created by Ordinance No. XLVIII of 1949 after the
commission of the offences charged, the fundamental
right guaranteed under article 20 is not attracted
thereto so as to invalidate such convictions.
This contention, however, cannot be upheld.
On a
careful consideration of the respective articles, one is
struck by the marked difference in language used in
the Indian and American Constitutions. Sections9(3)
and 10 of article 1 of the American Constitution
merely say that "No ex post facto law shall be
passed ... " and "No State shall pass ex post facto
law .... "
But in article 20 of the Indian Constitution
the language used is in much wider terms, and what
is prohibited is the conviction of a person or his
subjection to a penalty under ex post fa.eta laws. The
prohibition under the article is not confined to the
passing or the validity of the law, but extends to the
conviction pr the sentence
and is based on its
character as an ex post facto law.
The fullest effect
must therefore be given to the actual words used in
the article. Nor does such a construction of article 20
result in giving retrospective operation to the fundamental right thereby recognised.
All that it amounts
to is that the future operation of the fundamental
right declared in article 20 may also in certain cases
(1) [I95I] S.C. R. 2'8.
•
1200
SUPREME COURT REPORTS
[1953] .
1953
result from acts and situations which.had their commencement in the pre-Constitution period. In The
Rao Shlv
CJ
Bahadur Singh Queen v. St. Mary Whitechapel (1) Lord Denman . .
and Another pointed out that a statute which in its direct operation
v.
is prospective cannot properly be ealled a retrospeetive
The State of statute because a part of the requisites for its action is
Vindhya Prade•h. drawn from a time antecedent to its passing. The
.Jagannadhadas general principle therefore that the fundamental rights
J.
have no retrospective operation is not in any way
affected by giving the fullest effect to the wording of
article 20.
This article must accordingly be taken to
•
prohibit all convictions or subjections to penalty after
the Constitution in respect of ex post facto Jaws
whether the same was a post-Constitution law or I!- preConstitution law.
That such is the intendment of the
wording used in article 20 ( l) is confirmed by the
similar wording used in articles 20 (2) and 20 (3).
Under article 20 (2), for instance, it cannot be reasonably urged that the prohibitioE of double jeopardy
applies only when both the occasions therefor arise after
the Constitution.
Similarly, under article 20 (3) it
cannot be suggested that a person accused before the
Constitution can be compelled to be a witness against
himS<Jlf, if after the Constitution ~he case is pending.
In this context it is necessary to notice that what
is prohibited under article 20 is only conviction or
sentence under an ex post fatto law and not the trial
thereof.
Such trial under a procedure different from
what obtained at the time of the commission of the
offence or by a court different from that which had
competence at the time cannot ipso facto be held
to be unconstitutional.
A person accused of the
commission of an offence has no fundam~ntal right to
trial by a particular court or by a particular procedn 1·e,
except in so far as any constitutional objt:iction by
way of discrimination or the violation of any other
fundamental right may be involved.
In this connection our attent.ion has been drawn
to the fact that the Vindhya Pradesh Ordinance
XLVIII of· 1949, though enacted on 11th September,
(1) u6 E.H. 8n at 814.
\
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SUPREME COURT REPOR'rs
1201
1949, i.e., aft~r the alleged offences were committed,
1963
was in terms made retrospective by section 2 of the
Rao Shiv
said Ordinance which says that the Act " shall be Bahadur Singh
deemed to have been in force in Vindhya Pradesh
and Another
from the 9th day of August, 1948," a date long prior
v.
to the date of the commission of the offonces. It was . 2'he State 0!
accordingly suggested that since such a law at the Vindhya Pradesh.
time when it was passed was a valid law and since this Jayannadluula•
law had the effect of bringing this Ordinance into
J.
force from 9th August, 1949, it cannot be said that
the convictions are not ·in respect of "a law in force"
at the time when the offences were committed. This,
however, would be to import a somewhat technical
meaning into the phrase "law in force" as used in
article 20. "Law in force" referred to therein must be
taken to relate not to a law "deemed" to be in force
and thus brought into force but the law factually in
operation at the time or what may be called the then
existing law.
Otherwise, it is clear that the whole
purpose of article 20 would be completely defeated in
its application even to ex post facto laws passed after
the Constitution. Every such ex post facto law can be
made retrospective, as it must be, if it is to regulate
acts committed before the actual passing of the Act,
and it can well be urged that by such retrospective
operation it becomes the law in force at the time of
the commencement of the Act. It is obvious that
such a construction which nullifies article 20 cannot
possibly be adopted. It cannot therefore be doubted
that the phrase "law in force" as used in article 20
must be understood in its natural sense as being the
law in fact in existence and in operation a.t the time of
the commission of the offence as distinct from the law
"deemed" to have become operative by virtue of the
power of legislature to pass retrospective laws. It
follows that if the :>ppellants are able to substantiate
their contention that the acts charged as offences in
this case have become such only by virtue of Ordinance No. XL VIII of 1949 which has admittedly been
passed subsequent to the commission thereof, then
they would be entitled to the benefit of article 20 of
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. i202
SUPREME COURT REPORTS
[1953)
1953
the Constitution and to have their oonvictions set
R
Sh .
aside. This leads to an examination of the relevant
<to
iv
•
•
]
Bahadur Singh pre-ex1stmg aw.
and Anather
But before taking up that examination, it is conv.
venient to deal with a. contention which has been rev· ~~' s;ie;J h peatedly pressed on us, viz., that the validity of the
in ·ya ra " ·convictions in this case cannot be upheld on a conJagannadha<ias sideration of the pre-existing state of law, because
J.
(1) the charges are specifically with reference to the
offences under Ordinance No. XLVIII of 1949, and (2)
,
'
the said Ordinance itself has repealed the pre-existing
•
law.
This contention is, however, without any substance. An examination of the pre-existing state of
law in this behalf as on the date of the commission of
the offence is not for the purpose of converting the
convictions under Ordinance No. XLVIII of 1949 into
those under the previous Jaw. The convictions in this
case are clearly and legally referable only to Ordinance No. XLVIII of 1949, which was the law applicable to the offence at the tir.ae of the commission
thereof on account of the retrospective operation
validly given to that law by section 2 of the Ordinance.
It is only for the purpose of considering the constitutional validity of those convictions that the factual
position as regards the previous law in this behalf becomes necessary to be examined. This is a
question which arises on the contention of the appellants themselves, and is not an objection to the frame
of the charge or the legality of the conviction othe1'-
wise than on the footing of constitutional invalidity.
Nor is there any question of prejudice involved, since
that question has been raised on behalf of the appellants in the trial court itself, and the burden of
making out the facts requisite fur the constitutional
invalidity of the convictions is on them.
The argument that on the very terms of 0l'Clinance No. XLVIII of 1949 there is no pre-existing law
with reference to which the constitutionality of the
convictions under article 20 is to be judged is based on
8ections 2 and 3 (I) of the said Ordinance, which run
as follows:
\
'
• •
S.C.R.
SUPREME COUitT REPOitTS
1203
1953
Section 2: !'The Indian Penal Code as in force
generally in the Provinces of India immediately before
the commencement of this Ordinance shall applv, and B 1Bado Sh3fo 1
.
.
.
.
J
a 1a ur zng 1
shall be 111 force 111 V 111dhya Pradesh, subject to the and Anothc;
adaptation and modifications set out in the Schedule,
v.
and the said Code as so applied shall be deemed to
The State of
have been in force in Vindhya Pradesh from the 9th Vindhya PradCBli.
day of August, 1948."
Section 3 (1 ): "If immediately before the commencement of this Ordinance there is in force .in
Vindhya Pradesh or any part thereof any law corresponding to the Indian Penal Code, such law is hereby
repealed."
It is urged that as a result of these two provisions
the pre-existing law, if any, has been repealed as from
9th August, 1948, and that therefore the period between 9th August, 1948, and 11th September, 1949, on
which date Ordinance No. XL VIII of 1949 came into
force must be taken to be a period of no penal law in
this territory for judging the constitutionality of any
conviction subsequent to 11th September, 1949, for an
alleged offence committed during that period. This
argument is self-contradictory, and proceeds on
misconception. What is relevant for the application
of article 20 is not the result brought about by repeal
and the retrospective operation thereof, but the factual
state of law as it existed prior to the date when the
repeal came into operation. The repeal itself posits
the pre-existence of the law, and it is that law which
is relevant for our present purpose.
It therefore becomes necessary to examine in some
detail what was the criminal law factually in force
during the months of February, March and April, 1949,
when the acts charged as offences against the appellants were committed, and to see whether it was anything different from what wa.s enacted by Ordinance
No. XLVIII of 1949. Since the valid existence of such
law has been, in the course of the arguments, contended as depending on the administrative set-up at the
relevant period ancl the legiRlative authority·functioning
•
,J agannadhadaa
J.
•
•
1204
SUPRENIE COVRT REPOR'l'S
[1953]
1953
in that set-up, it becomes necessary. to have a
Rao Shiv
correct appreciation of the events which resulted in
BahadurSinuh bringing about a United State of Vindhya Pradesh.
and Another
The State ofVindhya Pradesh consists of as many
"·
as 35 pre-existing native States known as Bundelkhand
,,, Tdhle 81P01'a0f 1 and Baghhelkand States of which the State of Rewa
•in iya '" e.n
1 h 1
.
I
d'
1
f
was apparent y t e argest umt.
mme iate y a ter
JauannarlhadaB the passing of the Indian Independence Act of 1947
J,
which by virtue of section 7 thereof resulted in the
lapse of the suzerainty of the British Government in
India, these various States executed in favour of the
Government of India Instruments of Accession under
section 6 of the Government of India Act in accordance
with the form which is found at pages 165 and 169 of
the White Paper on Indian States issued by the
Government of India in March 1951.
At about the
•
same time they executed also standstill agreements as
per form given at page 173 of the W'hite Paper.
Shortly thereafter and in pursuance of the policy of
the Government of India all these 35 States executed,
with the concurrence of the Government of India, an
inter se Covenant dated 18th March, 1948, for the
establishment of a UnitedState ofVindhyaPradesh comprising the territories of these 35 States with a common
executive, legislature and judiciary. That Covenant
provided for common administrative arrangements
and for the election of a Rajpramukh. Article 9 of
the Covenant vested in the Rajpramukh the entire
legislative authority of the United State of Vindhya
Pradesh until a Constitution to be framed by the
appropriate body for the said United State ofVindhya
Pradesh provided otherwise. The Maharajah of Rewa
became the first Rajpramukh of the United State of
Vindhya Pradesh, and we are informed that though
the Covenant provided the 1st day of May, 1948, as
the date within which the administration is 'to be
made over to the Rajpramukh by each of the States,
some did not, and that, as a fact, the integrated
administration by the Rajpramukh in respect of all
States came into operation only from the 9th of
August, 1948. j\1eanwhile, however, it appears to have
•
f,
\
•
S.C.R.
SUPREME COURT REPORTS
1205
been thought.expedient that a fresh Instrument of
1953
Accession shoul~ be executed b.y the Rajpramukh on
Rao Shiv
behalf of the Umted State of Vmdhya Pradesh replac. Bahadur Singh
ing the individual Instruments of Accession which
and Another
were executed in the months of August, September,
v.
October and Novemb~r, 1947. Consequently a fres? Vi:::::v:;;:;;sh.
Instrument of Access10n was executed by the RaJpramukh on behalf of the United State of Vindhya Jagannadhadas
Pradesh on the 20th of July, 1948, and was accepted
J.
by the Governor-General of India on the 13th of
September, 1949.