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PETITIONER: GOPI CHAND

       Vs.

RESPONDENT: THE DELHI ADMINISTRATION

DATE OF JUDGMENT: 20/01/1959

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. DAS, SUDHI RANJAN (CJ) DAS, S.K. WANCHOO, K.N. HIDAYATULLAH, M.

CITATION:  1959 AIR  609            1959 SCR  Supl. (2)  87  CITATOR INFO :  D          1960 SC 457  (18,39)  R          1976 SC 714  (81)  RF         1977 SC1884  (12)  RF         1991 SC1117  (11)

ACT:        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, 1949 (Punj. 5  of        1949), ss. 36(1), 20--Constitution of India, Art.14--General        Clauses Act, 1879 (10 of 1879), s. 6.

HEADNOTE: Section  36(1) of the East Punjab Public Safety  Act,  1949, (Punj.  5  Of  1949), 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  land  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. 2o 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(1)  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(1) 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

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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.  14  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, (1)  that  the 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 88 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, [1959] S.C.R.  279, relied on. Lachmandas  Kewalram  Ahuja v. The State of  Bombay,  [1952] S.C.R. 710, 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, [1951] S.C.R. 621,  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. 2o or s. 36(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 erroneous to apply by analogy the provisions of s.  6 of the General Clauses Act to cases governed by a  temporary 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, (1883) I.L.R.  6  Mad.  336, Mukund  v.  Ladu,  (1901) 3 Bom.  L.R. 584  and  Gardner  v. Lucas, (1878) 3 A.C. 582, held inapplicable. Ram  Singh  v. The Crown, A.I.R. 1950 East Punjab  25,  dis- approved. Syed  Qasim Razvi v. The State of Hyderabad,  [1953]  S.C.R. 589, referred to and distinguished.

JUDGMENT: 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,

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221/2 and 223/2 of 1949. 89 Ram Lal Anand and S. N. Anand, for the appellant. H. J. Umrigar and T. M. Sen, for the respondent. 1959.  January 20.  The Judgment of the Court was  delivered by GAJENDRAGADKAR J.-These three appeals have, 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.  The  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,  1948, both 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 On  appeal  (No. 6-D of 1952) the order  of  conviction  was confirmed  but  the sentence imposed on him was  reduced  to three  years’ rigorous imprisonment.  This order  has  given rise to Criminal Appeal No. 26 of 1955 in this Court. In  the third case (No. 220/2 of 1949) the appellant,  Hukam Chand and Ganga Dayal were charged with having committed  an offence  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 criminal 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  challenge  the validity of the order of  conviction  and sentence passe 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

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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 91 cases  but in fact they have been tried under the  procedure prescribed  by ch.  XX for the trial of summons cases.   The summons procedure differs from the warrant procedure in some material points.  Under the former procedure a charge is not to  be  framed  while under the latter a charge  has  to  be framed  under  s.  254 of the Code.   Similarly  an  accused person   gets(  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 be  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 notifications  issued under  it.  The Act came into force on March 29,  1949.   It was passed to provide for 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 the  provisions  of sub-s. (1) shall apply to the  trial  of offences   mentioned  therein  committed  before  the   com- mencement  of this Act, and in a dangerously disturbed  area committed  before the date of the notification under s.  20, in respect of it.  Under s. 20 the Provincial Government  is authorised by notification to declare 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

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area  by  the  competent  authority.   It  appears  that  on September  28,  1950, the said authority issued  the  second notification  cancelling the first notification with  effect from October 1, 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. (1) 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 93 three  cases against the appellant about which there  is  no dispute.  , The First Information Report was  filed  against the appellant on June 30, 1948.  The trial commenced on July 18,  1949, and it was conducted according to  the  procedure prescribed  by  ch.   XX of  the  Code’.   Some  prosecution witnesses  were examined and cross-examined  before  January 26,  1950,  and the’ 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 disturbed, 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

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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 reasonable  or rational nexus with the object sought  to  be achieved  by the said impugned provision.  It is true  that, in the application of these tests uniform approach might not always  have been adopted, or, in dealing with the  relevant considerations emphasis might have shifted; but the validity of the two tests  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  thought 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 disturbed 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 statute.  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 95 in  enacting  the  first part of s. 36  so  that  the  cases against persons charged with the commission of the specified offences  could be speedily tried and disposed of.  We  are, therefore, satisfied that the challenge to the vires of  the first  part of sub-s. (1) of s. 36 cannot be sustained.   In this connection we may refer to the recent decision of  this Court  in Ram Krishna Dalmia 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 that s. 36(1) is invalid. We are not impressed by this argument.  In Ahuja’s case  (2) 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

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State  of Bombay.  These considerations applied  equally  to both  categories  of cases, those referred  to  the  Special Judge  and those not 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.I.R. 1958 S.C. 538. (2) [1952] S.C.R. 710, 731. 96 so,  we do not think that the decision in Ahuja’s  case  (1) has  any application at all.  Thus we feel no difficulty  in holding  that the impugned provision contained in the  first part of s. 36(1) is constitutional and valid. Then it is urged that the Act which came into force on March 29,  1949,  was due to expire and did expire on  August  14, 1951,  and  so the proceedings taken against  the  appellant under  the  summons procedure after the  expiration  of  the temporary  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 " (2).  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 (4).  In that case ail 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 (1)  [1952] S.C.R. 710, 731. (2)  Craies on " Statute Law ", 5th Ed., P. 377. (3)  [1951] S.C.R. 621, 628. (4)  [1947] A.C. 362. 97 Act  had  expired  was rejected in view  of  the  provisions of.,;.  11,  sub-s.  3 of the  Act.   This  sub-section  had

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provided  that  the expiry of the Act shall not  affect  the operation  thereof  as respects things  previously  done  or omitted to be done.  The House of Lords agreed with the view expressed  by the Court of Criminal Appeal and held that  it was clear that Parliament( did not intend 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 Punjab 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 must, however, be pointed out that this 13 98 Act  does  not  continue  the  material  provisions  of  the impugned Act such ass. 20 and s. 36 ; and so s. 16 cannot be invoked  for the purpose of validating the  continuation  of the  subsequent  proceedings against the  appellant  in  the cases then pending against him. Besides, it is necessary to recall that s. 36(1) of the  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

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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 99 in  regard  to  others.   Authority  to’  declare  areas  as dangerously disturbed has no doubt been validly delegated to the  Provincial  Government;  but  no  authority  has   been conferred on the delegate to treat any area as disturbed for certain  things  and  not disturbed for  others.   We  have, therefore, no doubt that in introducing the exception to the cancellation  effected 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 that 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 authority  conferred by the second part of s. 36(1).  It  is obvious   that  the  third  and  the  fourth   notifications attempted to cure the anomaly which it was apprehended would follow in regard to pending cases in the absence of a saving section  in the Act.  If through inadvertence  or  otherwise the  Act did not contain an appropriate saving section,  the defect could not be cured by the notifications issued either under  s. 20 or under s. 36(1) 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(1) of the Act. Mr.  Umrigar, then, argues that the competent authority  was

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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. Umrigar 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  opinion,  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 issued in respect of the whole or any  part of the Province 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 101 Government  to specify as dangerously disturbed.  The  power to  modify cannot obviously include the power to  treat  the same  area as dangerously disturbed for persons  accused  of crimes  committed in the past and not disturbed  for  others accused of the same or similar A, offences committed  later. That  clearly  is  a legislative function  which  is  wholly outside the authority conferred 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. Ram 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 1, 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 invited our attention  to  some decisions which may now be considered.  In Srinivasachari v. The  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

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concluded  the Code of Criminal Procedure, 1882,  came  into force (1)  [1883] I.L.R. 6 Mad. 336. 102 and  under  s. 269 of the Code all the said  charges  became triable by jury.  Section 558 of the Code had provided  that the provisions of the new Code had to be applied, as far  as may  be,  to  all cases pending in  any  criminal  court  on January  1,  1883.  The case against the accused  which  was pending  on the date  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 Mukund 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. Umrigar also placed strong reliance on a decision of the Full  Bench  of the Punjab High Court in Ram  Singh  v.  The Crown (3).  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 Bom.  L.R. 584.  (2) [1878] 3 A.C. 582. (3) A.I.R. 1950 East Punjab 25. 103 and  regular.  The case against Ram Singh had been  sent  to the  Court of Session under the provisions of s. 37  (1)  of the  Punjab Public Safety Act, 1948 (Punj. 2 of 1948)  at  a time when Luahiana District was declared to be a dangerously disturbed  area; before, however, the trial in the Court  of Session  actually  commenced the District ceased  to  be  a’ 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 that 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

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governed by the provisions of a temporary Act when the  said Act  does  not  contain  the  appropriate  saving   section. Failure  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 104 judges  referred  to the observation in Maxwell that  "  the general principle, however, seems to be that alterations  in procedure  are  retrospective,  unless there  be  some  good reason against it (1) ; and they also relied on the decision of  the Privy Council in Delhi Cloth and General Mills  Co., Ltd.  v. Income-tax Commissioner, Delhi (2) in  which  their Lordships  have  referred  with approval  to  their  earlier statement  of the law in the Colonial Sugar Refining Co.  v. Irving  (3)  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".  The learned judges  took  the view  that these principles justified their conclusion  that "where  the provisions of a statute dealing with matters  of procedure  are inapplicable to a certain proceeding  pending at  the  time  the statute came into  force,  they  must  be regarded   as  textually  inadmissible  so  far   as   those proceedings  are concerned ". We are disposed to think  that this  view is not sound.  We do not think that the  adoption of the ordinary warrant procedure was either inadmissible or inapplicable at the stage where the trial stood in the  case against Ram Singh (4).  It was wrong to assume that the ses- sions  procedure would be inapplicable for the  reason  that the  provisions of the Code in regard to the  commitment  of the case to the Court of Session had not been complied with. With respect, the learned judges failed to consider the fact that the procedure adopted in sending the case to the  Court of Session under s. 37(1) of the relevant Act was valid  and the  only  question  which  they  had  to  decide  was  what procedure  should be adopted after Ludhiana ceased to  be  a dangerously  disturbed area.  Besides, it was really  not  a case  of retrospective operation of the procedural  law;  it was  in fact a case where the ordinary procedure  which  had become  inapplicable  by  the provisions  of  the  temporary statute  became applicable as soon as the area  in  question ceased to be dangerously disturbed. (1)  Maxwell  on " Interpretation of Statutes ", 9th  Ed.,P. 226. (2) [1927] 9 Lah. 284.         (3) [1905] A.C. 369. (4) A.I.R. (1950) East Punjab 25. 105 In  this connection it is relevant to refer to the  decision of this Court in Syed Qasim Razvi v. The State of  Hyderabad (1).   In  that  case  this  Court  was  dealing  with   the regulation called the Special Tribunal Regulation (V of 1358 Fasli)  which had been promulgated by the Military  Governor

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of  the Hyderabad State.  The said regulation  had  provided that  the(  Military  Governor may, by  general  or  special order,  direct that any offence or class of offences  should be tried by such tribunal, and the procedure for trial  laid down  by  it differed from the provisions of  the  Hyderabad Criminal  Procedure  Code in several  material  particulars. The  cases against the accused were directed to be tried  by the  Special Tribunal on October 6, 1949.  The accused  were convicted in September 1950 and their conviction on some  of the charges was upheld by the High Court in appeal in April, 1951.   The  accused then appealed to this  Court  and  also applied  under Art. 32 of the Constitution for quashing  the orders  of  conviction and sentence on the ground  that  the Special Tribunal Regulation became void on January 26, 1950, as  its  provisions  contravened  Arts. 14  and  21  of  the Constitution  which  came into force on that date,  and  the continuation  of  the trial and conviction  of  the  accused after  that  date was illegal.  It is true  that  the  final decision  in  the  case, according  to  the  majority  view, proceeded on the footing that the accused had  substantially the  benefit of a normal trial though there were  deviations in  certain particulars and so his conviction could  not  be set aside merely because the Constitution of India came into force  before  the  termination of the trial.   As  we  will presently  point  out, the relevant facts in  this  case  in regard  to  the  deviation from  the  normal  procedure  are different  from  those in Syed Qasim Razvi’s case  (1),  but that  is another matter.  What is important for our  purpose is  the  view expressed by this Court  that  the  regulation issued by the Military Governor of Hyderabad State could not be  impeached and so the Special Tribunal must be deemed  to have taken cognisance of (1)  [1953] S.C.R. 589. 14 106 the  case quite properly and its proceedings up to the  date of  the coming in of the Constitution would also have to  be regarded as valid.  Dealing with this point, Mukherjea,  J., who  delivered  the  judgment  of  the  Court,  quoted  with approval the observations made in Lachmandas Kewalram  Ahuja v. The State of Bombay(1) that ,as the Act was valid in  its entirety  before the date of the Constitution, that part  of the proceedings before the Special Judge, which, up to  that date  had been regulated by the special procedure cannot  be questioned  ". Unfortunately this aspect of the  matter  was not properly placed before the Full Bench of the Punjab High Court  in the case of Ram Singh (2).  If the learned  judges had proceeded to deal with the question referred to them  on the  basis  that the initial submission of the case  to  the Court  of Session under s. 37(1) of the Act was  valid  they would  not  have come to the conclusion  that  the  sessions procedure   was   inadmissible  or   inapplicable   to   the continuation  of the case after Ludhiana had ceased to be  a dangerously  disturbed area.  That is why we think that  the view taken by the Full Bench is erroneous. The position then is that as from October 1, 1950, the three cases against the appellant should have been tried according to  the warrant procedure.  It is clear that, at  the  stage where the trial stood on the material date, the whole of the prosecution  evidence had not been led and so there  was  no difficulty  in framing charges against the appellant in  the respective cases and thereafter continuing the trial accord- ing  to the warrant procedure.  Having regard to the  nature of  the  charges  framed and the  character  and  volume  of evidence  led,  it is difficult to  resist  the  appellant’s

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argument  that  the  failure to frame charges  has-  led  to prejudice;  and  it  is  not  at  all  easy  to  accept  the respondent’s  contention  that  the  double  opportunity  to cross-examine  the prosecution witnesses which is  available to  an accused person under the warrant procedure is  not  a matter  of  substantive and valuable benefit  to  him.   The denial of this opportunity must, (1) [1952] S.C.R. 710, 731, (2) A.I.R. 1950 East Punjab 25. 107 in  the circumstances of the present cases, be held to  have caused prejudice to him.  We must accordingly hold that  the continuation  of  the trial of the three cases  against  the appellant  according to the summons procedure subsequent  to October 1, 1950, has vitiated the trial and has rendered the final  orders of conviction and sentence invalid.   We  must accordingly set aside the orders of conviction and  sentence passed against the appellant in all the three cases. That  takes us to the question as to the final  order  which should be passed in the present appeals.  The offences  with which  the appellant stands charged are of a  very  serious, nature; and though it is true that he has had to undergo the ordeal of a trial and has suffered rigorous imprisonment for some  time that would not justify his prayer that we  should not order his retrial.  In our opinion, having regard to the gravity  of the offences charged against the appellant,  the ends of justice require that we should direct that he should be tried for the said offences de novo according to law.  We also  direct  that the proceedings to be taken  against  the appellant  hereafter should be commenced without  delay  and should be disposed of as expeditiously as possible.                                  Appeal allowed.                                  Retrial ordered.