Judgment

HIDAYATULLAH, J. : These are appeals by the State of Nagaland against the judgment and order of the High Court of Assam and Nagaland August 26, 1965, by which the High Court, allowing certain writ petitions filed by the respondents, issued a writ of mandamus directing the Additional Deputy, Commissioner, Kohima and the State of Nagaland, not to proceed with the trial of the respondents. The High Court has certified the case as fit for appeal to this Court. The facts are these :

2. The respondents are members of the 7th Battalion of the Central Reserve Police (shortly called in this judgment the C. R. P.) who, under the command of the 8th Mountairn Division Infantry Brigade, were engaged in operations in the State of Nagaland. On receipt of information that on or about August 3, 1964, seven hostile Nagas, who were captured and kept prisoners with the C. R. P. at Pfutser Camp, were murdered and their dead bodies secretly disposed of, the police, after investigating the report, arrested 44 persons and charged them with offences under Ss.302/109/34 and 201, Indian Penal Code. Some other members of the C. R. P. were charged at the same time under S. 486 Indian Penal Code for setting fire to some houses in certain villages. The trial was about to take place before the Additional Deputy Commissioner, Kohima when an objection was taken that the trial should be before the Court of Session after commitment, as the offences were triable by the Court of Session exclusively, under the Code of Criminal Procedure. The Additional Deputy Commissioner overruled the objection pointing out that there were no Courts of Session in the Naga Hills District and the Criminal Procedure Code was also not in force. He ruled that committal proceedings and trial before a Sessions Court were, therefore, not possible and the procedure laid down in the Rules for the Administration of Justice and Police in the Naga Hills District. 1937 would be followed. For brevity we shall refer to these Rules as the Rules of 1937.

3. The respondents filed five petitions under Article 226 of the Constitution for writs or orders to quash the proceedings under the Rules of 1937and other reliefs. By the order impugned here a Divisional Bench consisting of C. Sanjeeva Rao Nayudu and S. K. Dutta JJ. quashed the proceedings and issued a writ of mandamus directing the Additional Deputy Commissioner and the State of Nagaland not to proceed under the Rules of 1937 with the trial of accused before him. The learned Judges gave separate, but concurring judgments. Mr. Justice Dutta in a brief judgment reached the conclusion that the Rules of 1937 made by the Governor of Assam and the earlier rules made by the Lt. Governor on November 29, 1906 were not validly made. In his opinion there already existed certain other Rules made by the Governor-General in Council in 1874 and the local Government was not competent to make rules while those Rules existed. In regard to the Rules of 1874 the learned Judge held that they "had become infructuous" for want of suitable adaptation after the political changes since 1874. He did not consider any other ground of alleged invalidity of these Rules and expressly refrained from giving any opinion. Mr. Justice C. Sanjeeva Rao Nayudu dealt with the problem exhaustively and viewed it from many angles. He gave several reasons for holding that the trial could not take place under the Rules of 1937. We have not found it easy to summarize his reasons effectively but, briefly stated, they were; that the Rules of 1937 were void ab initio because the Scheduled Districts Act, 1874 under which the Governor purported to make them did not give him any authority to make them; that if the Act gave such authority, it was itself ultra vires the statutes of British Parliament and involved excessive delegation; that on the repeal of Scheduled Districts Act in 1937, all rules made under it lapsed; that the Rules of 1937 were vague, uncertain and elusive and were not Law a