1953 Supreme(SC) 71

SUPREME COURT OF INDIA
22nd May 1953.
M. PATANJALI SASTRI, CJI., B.K. MUKHERJEA, BOSE, GHULAM HASAN AND JAGANNADHA DAS JJ.
Rao Shiv Pahadur Singh and another, Appellants
Versus
The State of Vindhya Pradesh.
Criminal Appeal No. 7 of 1951.
Advocates appeared
Shri G. S. Pathak, Senior Advocate (Shri K. B. Asthana, Advocate, with him) instructed by Shri Rajinder Narain, Agent (for No. 1); Shri K. B. Asthana, Advocate, instructed by Shri Rajinder Narain, Agent, (for No. 2), for Appellants; Shri M. C. .Setalvad, Attorney General for India (Shri G. N. Joshi and Shri Porus A. Mehta, Advocates, with him), instructed by Shri G. H. Rajadhyaksha, Agent, for the State.

Headnote:Part C States (Laws) Act (1950), S. 4, Proviso 1-Validity - Constitution of India, Art. 14.-Sections 3, 4, 21, as adapted and amended by the Vindhya Pradesh Ordinances. - Article 14-lndian Penal Code as adapted by the Vindhya Pradesh Ordinance No. XLVIII of 1949-Trial by a Special Judge under the Vindhya Pradesh Criminal Law Amendment (Special Court) Ordinance (No V of (1949)-Validity of trial and conviction-Effect of the Part C States (Laws) Act, (XXX of 1950).

       The appellants 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, 161, 465 and 466 of the Indian Penal Code as adapted by the Vindhya Pradesh Ordinance No. XLVIII

       

       of 1949. They were acquitted by the Special Judge but on appeal the first appellant was convicted by the Judicial Commissioner on all the charges and the second appellant on the charges under Ss. 120B and 161 of the Indian Penal Code. The validity of the trial and convictions was challenged on appeal to the Supreme Court inter alia on the ground that they contravened article 14 of the Constitution.

       Held: The trial commenced on 2nd December, 1949, and even before the Criminal Law Amendment (Special Court) Ordinance No. V of 1949, dated 2nd December, 1949, came into force there was in operation the Code of Criminal Procedure Adaptation (Amendment) Ordinance No. XXVIII of 1949 dated 3rd May, 1949, whereby section 268 of the 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. The fact that the entire Criminal Procedure Code including S. 268 thereof was extended to Vindhya Pradesh on the 16th April, 1950, by the Part C States (Laws) Act, 1950, could not affect the validity of the trial after the 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 article 14. The trial of the appellants therefore did not contravene article 14.1 - Section 188 amended by V.P. Ordinance 15 of 1948 and V.P. Ordinance 27 of 1949-Effecf - VINDHYA PRADESH ORDINANCE

       Vindhya Pradesh Ordinances No. XLVIII of 1949 and No. V of 1949-Vindhya Pradesh Criminal Law Amendment (Special Courts) Ordinance (V of 1949) Indian Penal Code (Application to Vindhya Pradesh) Ordinance (XLVIII of 1949)-Vindhya Pradesh Application of Laws Ordinance (IV of 1948) (as amended by Ordinance 20 of 1949). Applicability and scope.

       The appellants, who were during the relevant period, the Minister of Industries and Secretary to the Government respectively of the State of Vindhya 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, 161,465 and 466 of the Indian Penal Code as adapted by the Vindhya Pradesh Ordinance No. XLVIII 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 demanded 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 on all the charges and the second appellant on the charges under Ss. 120-B and 161 of the Indian Penal Code. The validity of the trial and convictions was challenged on appeal to the Supreme Court inter alia on the ground that they contravened Arts. 14 and 20 of the Constitution and on the ground that no appeal lay to the Judicial Commissioner from the order of the Special Judge.

       Held: (1) As S.5 (2) of the Vindhya Pradesh Ordinance 1949 provided that the provisions of the Criminal Procedure Code shall apply to the proceedings of a Special Court and that the Special Judge shall be deemed to be a court of session, the normal right of appeal provided by S. 410 or S. 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 appeal able to the Judicial Commissioner.

       (2) The trial of the appellants did not contravene Art. 14 of the Constitution.

       (3) Article 20 of the Constitution 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 competence at that time cannot ipso facto be held to be unconstitutional.

       (4) The effect of the Vindhya Pradesh Application of Laws Ordinance (IV of 1948) as amended by Ordinance No. XX of 1949 was to extend to the entire state of Vindhya Pradesh with effect from 9.8.48 the criminal law previously in force in the Rewa State, viz., the Indian Penal Code, and the Criminal Procedure Code with adaptations mutatis mutandis. But even assuming that S. 2 of the Ordinance failed to achieve its purpose On account of misconception as to the previous publication of any particular Rewa Law in the Rewa Gazette that Rewa law would continue to be in force in the Rewa portion of United State of Vindhya Pradesh, as the Vindhya Pradesh law there for, on the principle that on change of sovereignty over an inhabited territory the per-existing laws continue to be in force until duly altered.

       (5) The amendment of S. 21 I.P.C. by Ordinance 48 of 1949 by the inclusion of a Minister of State within the definition of a public servant had not brought about any substantial change in law in the Rewa State after its integration. Even prior to the passing of Ordinance 48 of 1949 a Minister of Vindhya Pradesh was an officer of the State and as such a public servant within the meaning of S. 21 I.P.C. as adapted.

       (6) 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 at least in so far as they affected the subjects and courts of the State, were within the legislative competence of the State.

       The conviction of the appellants in respect of all the offences with which they were charged including the extra-territorial offence said to have been committed by the first appellant at New Delhi was not illegal under Art. 220 on the ground that the conviction was under an ex post facto law. - Article 20 (I)-Interpretation and scope-Indian Penal Code as adapted by the Vindhya Pradesh Ordinance No. XLVII of I949-Trial by a Special Judge under the Vindhya Pradesh Criminal Law Amendment (Special Court) Ordinance (No. V of I949)-Conviction under ex-post facto law- Validity-Effect of Part C States (Laws) Act (XXX of 1950).

       The appellants were tried by a Special Judge under the Vindhya Pradesh Criminal ~aw Amendment (Special Courts) Ordinance (No. V of 1949) for charges under Ss. 120-B, 161, 465 and 466 of the Indian Penal Code as adapted by the Vindhya Pradesh Ordinance No. XLVII of 1949, which was passed on 11th September 1949, while the offences were said to have been committed in the months of February, March and April, 1949, i.e., months prior to Ordinance. It was urged, therefore, that the convictions which in this case were after the Constitution came into force were in respect of an ex post facto law creating offences after the commission of the acts charged as such offences and hence unconstitutional, being in contravention of Art. 20 (1) of the Constitution.1

       Held: In article 20 what is prohibited is the conviction of a person or his subjection to a penalty under ex post facto laws. The prohibition under the article is not confined to the passing or the validity of the law, but extends to the conviction or 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 result from acts and situations which had their commencement in the pre-Constitution period. A statute which in its direct operation is prospective cannot properly be called a retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing.2 The general principle therefore that the fundamental rights 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 laws whether the same was a post-Constitution law or a pre-Constitution law.

       1. Article 20 (1) of the Constitution reads 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."

       2.The Queen v. St. Mary White chapel, 116 E.R. 811, 814 referred to.

       (2) What is prohibited under article 20 is 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 commission of the offence or by a court different from that which had competence at the time cannot so facto be held to be unconstitutional. A person accused of the commission of an offence has no fundamental right to trial by a particular court or by a particular procedure, except in so far as any constitutional objection by way of discrimination or the violation of any other fundamental right may be involved.

       (3) "Law in force" referred to in Art. 20 (I) 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, the whole purpose of article 20 would be completely defeated in its application even to ex post facto laws passed after the C6nstitution, as every such ex post facto law can be made retrospective.

       See also under article 14, item 351 and "Vindhya Pradesh Ordinance" post. - Sections 410, 417-Vindhya Pradesh Criminal law Amendment (Special Courts) Ordinance (5 of 1949), S. 5 (2)-Right of appeal from decision of Special Judge.