The determination of a substantial question of law as to the interpretation of the Constitution under Art.228 of the Constitution is necessary only if it is essential for the disposal of the case.

DIXIT, J.

1. This is a petition by one A.B. Lagu, who is being prosecuted in the Court of the City Magistrate, Indore, for an offence under S.4(i) of Prohibition of Associations Dangerous to the Public Peace Act, Samvat 2005, (Act No.19/1949), praying that the criminal case pending against him may be withdrawn from the Court of the City Magistrate and be disposed of by this Court. The petition has been made under Art.228 of the Constitution of India on the ground that the case involves substantial question of law as to the interpretation of the Constitution, viz: Whether the Act No.19/1949, the breach of which the petitioner is alleged to have committed, is repugnant to Art.19 of the Constitution and is, therefore, void.

2. The challan against the petitioner which was presented on 13-03-1950, mentions that the petitioner is a member of the Communist Party which has been declared by the Government to be an unlawful association, and that the petitioner was found on 03-12-1949 distributing bulletins of the party and thus assisting the party. On 18-04-1950, when the petitioner was first produced in Court, the learned City Magistrate explained to him the substance of the challan, the petitioner denied that he was a member of the Communist Party or that he in any way assisted the operations of the party. The witnesses for the prosecution were to be examined on 29-04-1940 in the meantime on 26-04-1950, the applicant presented a petition raising an objection that the Prohibition of Associations Dangerous to Public Peace Act, under which be is being prosecuted, is repugnant to Art.19 of the Constitution and is void, and that, therefore, the Magistrate should first determine this preliminary question. The learned Magistrate informed the parties that he would hear arguments on the question raised by the petitioner on 29-04-1950. On this date the witnesses for the prosecution were not present and the case was adjourned to 13-05-1950. The order recorded by the Magistrate on 29-04-1950, does not show that the preliminary objection raised by the applicant was considered.

3. In support of this petition Mr. Homi Daji, learned counsel for the aoplicant urged every thing that could possibly be said, but we are nonetheless persuaded that at this stage this application must be refused. Article 228 of the Constitution says:

"228. If the High Court is satisfied that the case pending in a Court subordinate to it involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the case, it shall withdraw the case and may

(a) either dispose of the case itself, or

(b) determine the said question of law and return the case to the Court from which the case has been 10 withdrawn together with a copy of its judgment on such question, and the said Court shall on receipt thereof proceed to dispose of the case in conformity with such judgment."

Under this Article before the High Court can withdraw a case, it has to be satisfied that the case "involves a substantial question of law as to the interpretation of the Constitution, the determination of which is necessary for the disposal of the case." The word 'involves' and the expression ''the determination of which is necessary for the disposal of the case", which occur in Art.228 are important and significant. They indicate that the satisfaction of the High Court must be as to the point that the case cannot be decided without a decision on the constitutional question. If in a case, along with the question of law as to the interpretation of the Constitution, there are other questions independent of the constitutional question which are sufficient in themselves to end the case, then the constitutional question is not one the determination of which is necessary for the disposal of the case.The mere circumstance, therefore, I that a question of law as to the interpretation of the Constitution has been raised and that it important and