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PETITIONER: RAO SHIV BAHADUR SINGH AND ANOTHER

       Vs.

RESPONDENT: THE STATE OF VINDHYA PRADESH.

DATE OF JUDGMENT: 22/05/1953

BENCH: JAGANNADHADAS, B. BENCH: JAGANNADHADAS, B. SASTRI, M. PATANJALI (CJ) MUKHERJEA, B.K. BOSE, VIVIAN HASAN, GHULAM

CITATION:  1953 AIR  394            1953 SCR 1188  CITATOR INFO :  RF         1953 SC 404  (17)  RF         1954 SC 322  (2)  R          1955 SC 123  (30)  D          1960 SC 266  (10,27,30,31)  E          1961 SC 838  (24)  R          1962 SC1737  (11,12)  RF         1963 SC 255  (16)  RF         1966 SC1206  (6,9)  R          1975 SC 902  (6)  F          1975 SC1234  (25)  R          1979 SC 478  (64,68,93)  R          1979 SC 602  (7)  R          1979 SC 898  (53)  RF         1981 SC1946  (22)  R          1987 SC1364  (7)  F          1989 SC1614  (12)

ACT: Constitution of India, 1950, Arts. 14, 20 Acts committed  in Rewa  State  in 1949 before Vindhya, Pradesh  Ordinance  No. XLVIII  of 1949 Charge under said Ordinance and trial  under Vindhya  Pradesh  Criminal Law  Amendment  (Special  Courts) Ordinance  (V  of 1949) Validity of  trial  and  conviction- Fundamental  rights  to  equalutility of  laws  and  against conviction under ex post facto lawScope of Arts. 14 and  20- Integration of States and Vindhya Pradesh Ordinances, effect of.

HEADNOTE:    The  appellants, who were during the relevant period,  the  Minister  for  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

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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 as under ss. 120-B and 161 of the  Indian  1189  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 (i) that, 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  betaken  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 (as 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  Vindhya  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 competence at 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 commission of the offence (or, in other  words,  the  then existing  154  1190  law)  and  does  not  include  a  law  which  by  subsequent  legislation  has to be deemed to have been in force at  that  time.

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   (vi)   Though  the  charges against the  appellants  were  specifically  framed  with reference to  the  offence  under  Ordinance  No.  XLVIII  of  1949, as  the  acts  charged  as  offences  did  not become such only by virtue  of  the  said  Ordinance and as they were offences even under the law which  prevailed  at  the time when the acts were  committed,  they  could not be regarded as convictions for 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 Row&  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 the  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 Mayor of Lyons v. Bast 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 within the legislative competence of the State.  (x)  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.

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.  7 of   1951.    Appeal  under  article  134  (1)(c)   of   the Constitution of India from the Judgment and Order dated  the 10th March, 1951, of the Court of the Judicial Commissioner, Vindhya  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, 1 of 1949. 1191    G.  S.  Pathak  (K.   B. Asthana,  with  him),  for  the, appellant No. 1.    K.     B. Asthana, for appellant No. 2.    M.     C. Setalvad, Attorney-General for India, (G.   N., Joshi, with him), for the respondent.      1953.  May 22.  The Judgment of the Court was delivered by JAGANNADHA  DASJ. 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 appellant,% 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

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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 lit  of  August, 1936, between the Panna Durbar 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  of  Vindhya 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 Nagindas Mehta, a 1192 representative  of the Panna Diamond Mining  Syndicate,  and that  later  on 11th April, 1949, the  first  appellant,  in fact,  received  a  sum  of Rs. 25,000  towards  it  at  the Constitution House in New Delhi and forged certain documents purporting  to  be orders passed in  official  capacity  and intended to confer some advantages or benefits on the  Panna Diamond Mining Syndicate. 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, 465  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  the  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 1193 instance.  The question raised depends oil a construction of the provisions of the Vindhya Pradesh Criminal Law Amendment (Special Court) Ordinance No. V of 1949 dated 2nd  December, 1949.   By section 2 thereof the Vindhya Pradesh  Government was  given the power by notification to  constitute  Special

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Courts  of  criminal jurisdiction within the  State  and  by section  3  to appoint a Special Judge to preside  over  the Special  Court.  By section 4 the Government was  authorised 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 Special 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  juris. dictions."     The  argument of learned 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 all confer. ring on an aggrieved  party  a right of appeal from 1194  the  judgment and order of the Special Judge to I the  High Court.   It  is  contended that the absence of  a  right  of appeal may be a lacuna, but that inasmuch as it has not been expressly provided, it cannot be implied from the fact  that a provision has been made for the exercise of powers by  the appellate court.  It is conceded that this line of argument, if  accepted, would result in there being no appeal even  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

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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 Criminal Procedure Code  to the  1195 proceedings of the Special Court is the one arising from the existence  of any inconsistent provisions in the,  Ordinance and  not with reference to’ the conduct of  the  proceedings before  that  very court.  Once the Special Court is  to  be deemed  a  Court  of  Session the  normal  right  of  appeal provided  by section 410 or section 417 as the case may  be, must  be taken to have been expressly provided by  reference and not as arising by mere implication.    Learned  counsel strongly relied on  Attorney-General  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 procedure.  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 Lakshnwndas Ahuja’s  case(2)  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, 1951.  In the (1) 10 H. L. Cas. 704; xi E. R. 1200.  (2) [1952] S.C.R. 710 1196 light,  however, of the later decision of the Supreme  Court in  Syed Qasim Razvi v. The State of Hyderabad(1),  )it  was recognised  that this point was unsubstantial,  unless  some material prejudice in the matter of procedure was shown.  In this  context  the learned Attorney-General brought  to  our notice  that 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,  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

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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  extent  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. 710. 1197 of  any offence committed against any such law, or  (c)  any investigation, legal proceeding or remedy in respect of  any such  penalty,  for  feiture or  punishment,  and  any  such investigation, legal proceeding or remedy may be instituted, continued  or enforced, and any such penalty, forfeiture  or punishment  may  be  imposed, as if this Act  had  not  been passed."  It  is  to be noticed that  the  saving  provision applies equally to proceedings previously commenced and then pending,  whether before the special court or  the  ordinary court, 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  pre- judicial  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, why 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 II  th  September, 1949, while the offences  themselves  are said to have been committed in the months of February, March and April, 1949, i.e., months prior to the Ordinance.  It is urged therefore that the convictions in this case which were after the Constitution came into force 155 1198 are  in  respect of an ex post facto law  creating  offences after  the commission of the acts charged as  such  offences and  hence  unconstitutional.  This  contention  raises  two important  questions, viz., (1) the proper  construction  of

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article 20 of the Constitution, and (2) whether the  various acts  in  respect  of which the  appellants  were  convicted constituted  offences in this area only from the  date  when Ordinance  No. XLVIII 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 expost facto  laws. The  principle  underlying such prohibition  has  been  very elaborately  discussed and pointed out in the  very  learned judgment  of  Justice  Willes  in the  well  known  case  of Phillips  v. Eyre(1) and also by the Supreme Court of V.  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  ex  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 1, sections 9  and  10  of its Constitution.  It  is  contended  by  the learned Attoney-General that article 20 of’ the Constitution (1)  (1870) 6 Q.B.D. i, at 23,and 25. (2)  3 Dallas 386; I Law.  Edition 648 at 649, 1199 was meant to bring about nothing more than the invalidity of such ex post facto laws in the post-Constitution period  but that  the  validity  of the pre-Constitution  laws  in  this behalf was not intended to be affected in any way.  The case in  Keshavan  Madhavan Menon v. The State of  Bombay(1)  has been   relied  on  to  show  that  the  fundamental   rights guaranteed  under  the Constitution  have  no  retrospective operation, and that the invalidity of laws brought about  by article  13  (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.  Sections 9(3) and 10 of article  I 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  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

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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) [1951] S.C.R. 228. 1200 result from acts and situations which had their commencement in  the pre-Constitution period.  In The Queen v.  St.  Mary Whitechapel (1) Lord, Denman C.J. pointed out that 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.   The lgeneral 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 apre Constitution  law. That  such  is the intended of the wording used  in  article 20(1)  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 prohibition  of  double jeopardy  applies  only when both the  occasions  there  for 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 himself, if after the Constitution the 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 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 ipso  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. In this connection our attention has been drawn to the  fact that  the Vindhya Pradesh Ordinance XLVIII of  1949,  though enacted on 11th September, (1)  116 E.R. 811 at 814. 1201 1949,  i.e., after the alleged offences were committed,  was in  terms  made  retrospective  by section  2  of  the  said Ordinance which says that the Act " shall be deemed to  have been in force in Vindhya Pradesh from the 9th day of August, 1948" a date long prior to the date of the commission of the offences.   It was accordingly suggested that since  such  a law  at  the? time when it was passed was a  valid  law  and since  this  law had the effect of bringing  this  Ordinance into force from 9th August, 1949, it cannot be said that the convictions  are Dot 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

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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 at  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 appellants are able to substantiate their  contention that  the acts charged as offences in this case have  become such  only by virtue, of Ordinance No. XLVIII of 1949  which has  admittedly  been passed subsequent  to  the  commission thereof,  then  they  would be entitled to  the  benefit  of article 20 of 12O2 the  Constitution and to have their convictions set  ,aside. This  leads to an examination of the  relevant  pre-existing law.  But before taking up that examination, it is convenient  to deal with a contention which has been repeatedly pressed  on us, viz., that the validity of the convictions in this  case cannot  be  upheld on a consideration  of  the  pre-existing state of law, because (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 preexisting  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 law.  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 time  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 otherwise 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   for   the constitutional invalidity of the convictions is on them.  The argument that on the very terms of Ordinance 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 sections 2 and 3 (1) of  the  said Ordinance, which run as follows: 1203 Section  2: "The Indian Penal Code as in force generally  in the  Provinces of India immediately before the  commencement of  this  Ordinance shall apply, and shall be  in  force  in Vindhya Pradesh, subject to the adaptation and modifications set  out  in the Schedule, and the said Code as  so  applied

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shall  be  deemed to have been in force in  Vindhya  Pradesh from the 9th 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 bet.  ween  9th August,  1948,  and  11th September,  1949,  on  which  date Ordinance  No. XLVIII 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 wag anything different from what  was 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 and  the  legislative  authority functioning 1204 in  that  set-up, it becomes necessary to  have  a  ,correct appreciation of the events which resulted in bringing  about a United State of Vindhya Pradesh.   The  State of Vindhya Pradesh consists of as many  5  pre- existing  native  States known as  Bundelkhand  Baghlielkand States  of  which the State of Rewa apparently  the  largest unit.    Immediately  after  the  passing  of   the   Indian Independence  Act  of  1947 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 White 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 of  VindhyaPradesh  com- prising  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  of Vindhya  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

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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, Meanwhile, however, it appears to have 1205 been thought expedient that a fresh Instrument of  Accession should be executed by the Rajpramukh on behalf of the United State   of   Vindhya  Pradesh   replacing   the   individual Instruments  of Accession which were executed in the  months of   August,   September,  October   and   November,   1947. Consequently  a fresh, Instrument of Accession was  executed by  the Rajpramukh on behalf of the United State of  Vindhya Pradesh  on the 20th of July, 1948, and was accepted by  the Governor-General  of India on the 13th of  September,  1949. It  may be incidentally mentioned that one of the  important differences  between the previous individual Instruments  of Accession  executed  by  the various rulers  and  the  later Instrument  of Accession executed by the Rajpramukh is  that while  under  the former, accession was only in  respect  of three   matters,   viz.,  Defence,  External   Affairs   and Communications, under the later Instrument dated the 20th of July, 1948, all matters enumerated in Lists Nos.  I and  III of  the  Seventh Schedule of the Government  of  India  Act, 1935,  were accepted as the matters in respect of which  the legislature of India, then called the Dominion  Legislature, might make laws for the United State of Vindhya Pradesh.  It may  also be mentioned that on the 25th November, 1949,  the Rajpramukh  of the United State of Vindhya Pradesh issued  a proclamation  whereby he declared that the  Constitution  of India   which  was  then  shortly  to  be  adopted  by   the Constituent Assembly of India shall be the Constitution  for the  Vindhya  Pradesh as for the other parts  of  India  and specifically    superseded   and   abrogated    all    other constitutional provisions inconsistent therewith which  were then  in  force in this State.  These  arrangements  brought about  an integrated United State of Vindhya Pradesh  within the  framework of the Dominion of India but only by  way  of accession.   Further  steps,  however,  had  the  effect  of merging  these  United States as part of  the  territory  of India.   It is unnecessary to notice those steps in  detail, as  they fall beyond the period with which we are  concerned for the present purpose, 156 1206 It  is  against this background of events  constituting  the integration  of these various ruler States into  the  United State  of  Vindhya  Pradesh within the  Union  of  India  by accession  thereto  that  the question as to  what  was  the criminal  law in force by February, March and  April,  1949, has got to be judged.  From the above ,narration it will  be noticed that at the relevant period it was the Government of the United State of Vindhya Pradesh constituted by the inter se integration Covenant dated the 18th March, 1948, that was functioning under the authority of the Rajpramukh of Vindhya Pradesh and subject to the Instrument of Accession with  the Dominion  of India executed by him on the 20th  July,  1948. As  already  stated, the  actual  integrated  administration under these arrangements came into operation for the  entire United State only on the 9th of August, 1948.   We  may  now start with the fact above  noticed  that  the various component States became the United State of  Vindhya Pradesh  on the 18th March, 1948.  In the normal course  and in  the  absence  of  any  attempts  to  introduce   uniform legislation  throughout the State the pre-existing  laws  of

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the  various component States would continue to be in  force on  the  well-accepted  principle laid  down  by  the  Privy Council  in  Mayor of Lyons v. East India  Company(1).   The first  step towards the introduction of some  uniformity  in the laws for the entire State was taken by the Rajpramukh by issuing  on  the 31st July, 1948, an  Ordinance  styled  the Vindhya  Pradesh  Application of Laws Ordinance  No.  IV  of 1948.  Section 2 of that Ordinance provided as follows:-   "All Acts, Codes, Ordinances and other laws, and rules and regulations  made thereunder, which have, by publication  in the  Rewa Raj Gazette, been enforced in the Rewa State,  and continue to be in force, are extended so as to be applicable to  the whole of Vindhya Pradesh, Provided that  nothing  in this clause shall apply to any local law, rules,  regulation or custom having the force of law, which relates to  matters connected with land revenue or tenancy."  (1) 1 M.I.A. 175, at 270,,271. 1207   This Ordinance extended to the whole of Vindhya,  Pradesh, and  was  to  come into force with effect from  the  9th  of August, 1948, by virtue of section I thereof.  The Ordinance was amended later by another Ordinance No. XX of 1949  which deleted  from section 2 of the previous Ordinance the  words "by  publication  in the Rewa Raj Gazette".  The  effect  of these  two  Ordinances, so far as we are concerned,  was  to extend’ to the entire State of Vindhya Pradesh the  criminal law  which was in force previously in the Rewa State.   That law  is to be found by reference to Orders Nos.  IV of  1921 and VI of 1922 issued by the then Regent of Rewa acting  for the  Maharajah  on the 18th February, 1921, and  9th  March, 1922,  respectively.  A perusal of these two Orders  and  in particular of paragraph 10 of the 1921 Order as  interpreted by the 1922 Order makes it perfectly clear "that the  Indian Penal   Code  and  the  Code  of  Criminal  Procedure   were introduced  in  the  Rewa State, in the letter  and  in  the spirit  with due adaptation to local conditions." It is  not disputed  that this continued to be the position so  far  as Rewa  State was concerned until the United State of  Vindhya Pradesh  was formed.  It follows that the Indian Penal  Code and   the   Code  of  Criminal  Procedure   with   necessary adaptations were brought into operation in the entire United State  of Vindhya Pradesh shortly after the introduction  of the integrated administration under the Rajpramukh.  It has been urged, however, that though this may have  been the  intention, the intention did not become  operative  for reasons to be presently stated.  Section 2 of Ordinance  No. IV  of  1948 while extending the laws of Rewa State  to  the rest  of Vindhya Pradesh refers to the publication  of  such laws in the Rewa Gazette as a requisite therefor, and it  is pointed out that the Rewa Gazette itself came into existence only  in  October 1930 (vide page 386 of the  printed  paper book),  whereas  the Penal Code and the  Criminal  Procedure Code  were brought into operation in the Rewa State in  1921 and 1922.  It is also pointed out that the deletion of the 1208 ,requirement   of  previous  publication  in  the  Rewa   by Ordinance No.. XX of 1949 came into operition only when that Ordinance  was  published in the  Vindhya  Pradesh  Gazette, i.e.,  on the 15th May, 1949, sometime after the  commission of the offence in this ,case.  To substantiate the view that only  such of the Rewa laws which were previously  published in  the Rewa Gazette were understood as having  been  origi- nally  extended  to Vindhya Pradesh by Ordinance No.  IV  of 1948, a decision of the Vindhya Pradesh High Court dated the 29th  October,  1949,  in Criminal Appeal No.  27  has  been

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brought to our notice which assumes that the Prisoners’  Act in  force  in India was not in force in Vindhya  Pradesh  as there was no previous publication of it in the Rewa Gazette. On  the  other  side  a  notification  of  Vindhya   Pradesh Government dated the 19th March, 1949, and published in  the Vindhya Pradesh Gazette dated the 30th March, 1949, has been brought  to our notice which specifically mentions  all  the laws  by then in force in Vindhya Pradesh and shows  "Indian Penal  Code-mutatis mutandis-with necessary adaptations"  as item  86 thereof This is relied on to show that  there  must have been a previous publication thereof in the Rewa Gazette before integration.  There seems to be considerable force in this argument that in respect of the various Rewa State laws which have been enumerated in the above-mentioned Gazette as having  been brought into force in Vindhya Pradesh (some  of these are Acts prior to 1930) there must have been  previous publication  in  the Rewa Gazette sometime after  1930,  and that  neither Ordinance No. XX of 1949 nor the  decision  of Vindhya Pradesh High Court relating to Prisoners’ Act (which is not one enumerated in the above Gazette) can be taken  to negative  it.   We are prima facie inclined to  accept  this view and to think that the Indian Penal Code as in force  in Rewa became extended to Vindhya Pradesh by Ordinance No.  IV of 1948.  But even assuming that section 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, 1209 it is clear that that Rewa law would continue to be in force in the Rewa portion of the United State of Vindhya  Pradesh, as  the  Vindhya  Pradesh law  therefor,  on  the  principle recognised in Mayor of Lyons v. East India Company (1), that on  change  of sovereignty over an inhabited  territory  the pre-existing  laws  continue  to  be  in  force  until  duly altered.   Since in the present case we are  concerned  with offences committed in relation to the Rewa State portion  of Vindhya  Pradesh, there can be no reasonable  difficulty  in holding  that  the  criminal law of Rewa  State,  i.e.,  the Indian  Penal  Code  and the Criminal  Procedure  Code  with adaptations  mutatis mutandis, was the relevant law for  our present  purpose by the date of  integrated  administration, viz., the 9th August, 1948.    Now  the subsequent alterations therein by Ordinances  of the  Rajpramukh  may  be shortly noticed.   So  far  as  the substantive  penal  law is concerned, there  was  the  Anti- corruption  Ordinance  No.  XII  of  1948  dated  the   16th -December,  1948, and the Indian Penal Code (Application  to Vindhya Pradesh) Ordinance No. XLVIII of 1949 dated the 11th September,  1949.   The former being prior to the  dates  of commission  of  the offences in the present  case  does  not require  any  further  notice.   So  far  as  the   Criminal Procedure Code is concerned, there were two Ordinances:  (1) the  Criminal Procedure Code Adaptation Ordinance No. XV  of 1948  dated  the 31st December, 1948, and (2)  the  Criminal Procedure Code Adaptation (Amendment) Ordinance No. XXVII of 1949  dated  the 3rd May, 1949.  In view of  what  has  been found  above,  viz.,  that by virtue of the  Orders  of  the Regent of Rewa dated 1921 and 1922 the Indian Penal Code and Criminal  Procedure  Code  with  the  necessary  adaptations mutatis  mutandis  were in force in Rewa  State  and  either became extended to the 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 Vindhya Pradesh  State by virtue of the principle in Mayor of Lyons’ case (1) it is prima facie correct to say that the penal law in force

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(1) I M. I. A. 175 1210 in the relevant area was substantially the same both  before and  after  the  above-mentioned  amendments  made  by   the Rajpramukh. It is urged however that in two important respects  relevant for  our  present  purpose there is  a  difference.   It  is pointed  out  that  there  is  anamendment  as  regards  the definition  of "Public servant" by Ordinance No.  XLVIII  of 1949.  It is also urged that sections 3 and 4 of the  Indian Penal  Code and section 188 of the Criminal Procedure  Code, which are extra-territorial in operation could not have been brought   into  force  into  Rewa  or  Vindhya  Pradesh   by adaptation or legislation for lack of legislative competence in  this  behalf  at the relevant times.   The  points  thus raised assume importance since the charges against the first appellant, who is a Minister, is in his capacity as a public servant and since also one of the charges against him is  in respect of acts done in New Delhi-completely outside Vindhya Pradesh.   It  is  true that Ordinance No.  XLVIII  of  1949 amended  the  Indian  Penal Code  by  substituting  for  the previous first clause of section 21 thereof relating to  the definition of a "public servant" the phrase "Every  Minister of  State".   But it does not follow that  "  a  Minister of State" was not a public servant as defined in section 21  of the Indian Penal Code even before this amendment.  Clause  9 of  section 21, Indian Penal Code, shows that every  officer in  the service or pay of the Crown for the  performance  of any public duty is a "public servant".  The decision of  the Privy  Council  in  King-Emperor v.  Sibnath  Banerji(1)  is decisive  to  show that a Minister under the  Government  of India  Act is "an officer" subordinate to the Governor.   On the  same reasoning there can be no doubt that the  Minister of  Vindhya  Pradesh would be an "officer" of the  State  of Vindhya  Pradesh.   Therefore,  prior  to  the  passing   of Ordinance No. XLVIII of 1949 and on the view that the Indian Penal  Code with necessary adaptations mutatis mutandis  was in force at least in the Rewa portion of Vindhya Pradesh (if not in the entirety of Vindhya Pradesh) the first  appellant was a public servant (1)  [1945] F. C. R. 1915 at 222. 1211 as  defined  in section 21, Indian Penal Code,  as  adapted. The amendment of the said section brought about therefore no substantial  change in the position of the first  appellant. It has been faintly suggested that, even so, under the  pre- existing  law  the definition of public servant  could  have reference only to an officer of the Rewa State, and that the change  brought about by Ordinance No. XLVIII of  1949  made only the Minister of Vindhya Pradesh State a public servant. This  argument  is  fallacious.   It  is  implicit  in   the continuance  of  Rewa law after integration  that  from  the moment of such continuance it became the Vindhya Pradesh law for  the Rewa portion of Vindhya Pradesh territory with  the requisite  implied adaptation consonant to the  new  set-up. There  is  therefore no substance in the argument  that  the amendment of section 21, Indian Penal Code, by Ordinance No. XLVIII of 1949 brought about any change in the situation  of the first appellant as a public servant.    The  further  question that remains to be  considered  is whether  under  the  Vindbya  Pradesh  law,  acts  committed outside  the State are offences and are triable  by  Vindhya Pradesh  courts, and whether in any case there was any  such law  in factual operation at the date when the acts  charged as  offences  in this case were committed at  New  Delhi  in

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April,  1949.   Under  the normal Indian  law  the  relevant legislative  provisions are sections 3 and 4,  Indian  Penal Code,  and  section 188, Criminal Procedure  Code,  and  the question  is  whether  by  express  or  implied’  adaptation mutatis  mutandis  these sections can be held to  have  been validly in force in Vindhya Pradesh at the relevant  period. It  is  contended that the rulers of native  States  had  no authority   for  extra-territorial  legislation,  and   that consequently any adaptation in this behalf cannot be implied and  if  expressly purporting to be made, cannot  be  valid. There can be no doubt that the provisions of the Penal  Code and the Criminal Procedure Code are in the nature of  extra- territorial   legislation,   and   that   every    sovereign legislative authority has the power to pass such laws  also. [See Macleod 1212 v.   Attorney-General  for  New South Wales (1)].   In  the, present case we are concerned only with that portion of  the relevant   extra-territorial  law  which  renders   an   act committed  by a subject of the State outside the  limits  of the State an offence triable by the courts of state.  In the course  of  the  arguments it has  suggested  that  to  that limited  extent no question territoriality of  the  relevant legislation arises. concept of extra-territorial legislation appears  to  comprehend  such cases also,  if  the  passages relied  on before us from Pitt-Cobbet’s  International  Law, 5th  Edition,  at  page 216 as also at pages  225  and  226- paragraphs  101  and  102, are to be  accepted  as  correct. Assuming without deciding that this is so, the argument  has been advanced that no ruler of the Indian States, before the 15th  August, 1947, and much less the Rajpramukh of  Vindhya Pradesh,  had any such full sovereign status as  to  entitle them  to pass extraterritorial laws.  It is well-known  that these  rulers had no external sovereignty, as it  was  taken out  of  them and exercised by the suzerain  British  power. But  for internal purposes or municipal purposes the  rulers were  generally considered as having full  sovereign  status except  to  the extent that the suzerain  power  assumed  to itself  any function of such internal sovereignty either  on specific  occasions,  or  generally but  for  specified  and limited purposes.  In their relation with the rulers of  the native  States,  the  suzerain British power  acted  on  the juristic   theory  propounded  by  Sir  Henry   Maine   that "sovereignty  is divisible, though independence  is  not"See Ilbert’s Government of India, page 425-a theory accepted  in the  Butler Committee Report on Indian States  (1928-29)  at page  25, paragraph 44.  The passages at pages 398, 399  and 426 of Ilbert’s Government of India would show that what may have been left of internal sovereignty to a particular ruler may in exceptional cases be nothing more than titular.   The general  position of these Native States in India  prior  to 15th  August,  1947,  appears fairly  clearly  from  certain instructive  passages at pages 422 and 423 of Ilbert and  is correlative (1)  [1891] A.C. 455. 1213 to the actual exercise of British jurisdiction within  those States as appears from the following passages:-   "In point of fact the jurisdiction of the  GovernorGeneral in  Council  within  the territories  of  Native  States  is exercised- (a)  over European British subjects in all cases; (b)  over native Indian subjects in certain cases; (c)  over all classes of persons, British or foreign, within certain areas.

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     It  is  the policy of the Government of India  not  to allow native courts to exercise jurisdiction in the case  of European  British subjects but to require them either to  be tried by the British courts established in the Native State, or to be sent for trial before a court in British India.     The Government of India does not claim similar exclusive jurisdiction over native Indian subjects of His Majesty when within   Native   States,   but   doubtless   would   assert jurisdiction over such persons in cases where it thought the assertion necessary............ "    "The   Government  of  India  does  not,  except   within specified  areas,  or under special circumstances,  such  as during  the  minority  of  a native  prince,  take  over  or interfere  with the Jurisdiction of the courts of  a  Native State  in cases affecting only the subjects of  that  State, but leaves such cases to be dealt with by the native  courts in accordance with native laws."     Lee  Warner in his book on "Protected Princes of  India" states  the  position at pages 351 and 352.   The  following extract from paragraph 143 at page 351 is instructive :     "But where, as in the case of European British subjects, material  distinctions  in religion, education,  and  social habits separate them from the native community, and  justify the extension to them of those rights of  ex-territoriality, which  are  still  obtained for them  by  Capitulations  and agreements with foreign 157 1214 non-Christian nations, these distinctions are absent in  the case of native Indian subjects of Her Majesty.  The  systems of  native  justice,  if not similar  to  those  in  British territory,  are more or less assimilated, and provided  that the  trial  of  native  Indian  subjects  by  the   ordinary tribunals  of the States, whose laws they have offended,  is supervised  by  the British agent, the general  rule  is  to leave  to the Native States jurisdiction over  such  British subjects  who  break  their laws,  even  where  the  offence committed  is also cognisable under the law of  India.   The British  Government goes still farther, since it  extradites to the Native State a native Indian subject, who, after  the commission   of  an  extraditable  offence  in  the   Native principality,  seeks shelter in British territory,  provided that the political agent is satisfied that the crime can  be properly  tried  in  the courts of the  Native  State.   The powers  of the sovereigns of the States, in respect  of  the trial  of  native  Indian  subjects,  have  been   generally classified.   Some chiefs can try any person, whether  their own  or  a  native Indian subject,  for  a  capital  offence without  express  permission; others can only try  a  native Indian  subject  for such an offence  with  permission;  and others, again, cannot pass a final sentence of death without the confirmation of Government to it."     These  passages,  while showing that the extent  of  the exercise of internal sovereignty by each of these rulers  in actual  practice, is a matter for evidence, when  called  in question,  indicate that full jurisdiction over the  rulers’ own subjects was never denied but generally conceded, except where  a sentence of death was involved. There is  therefore no  reason at all to think that the rulers had no  authority to pass laws binding their own subjects and regulating their own courts in respect of acts committed outside their  State assuming such laws to be extra-territorial.  In this context an  old  treaty of 1813 between Rewa State and  the  British Government  and  a fairly recent judoment of the  Rewa  High Court  in 1945 have been brought to our notice to  show  the

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contrary  at least so far as Rewa State is  concerned.   The treaty is to be found at page 255 of 1215 Volume  V of Aitchison’s Treaties, Engagements and’  Sanads. Article   6  thereof  which  is  relied  on  only   provides facilities for the suzerain Government to follow and  pursue into Rewa State, offenders who having committed offences  in British  India  escape away into the State.  This  does  not negative   the  authority  of  the  Rewa  State   to   enact legislation  concerning  its own subjects when  they  commit such offences outside the State. 1945 Rewa Law Reports 84 is no  doubt  a case in which the High Court assumed  that  the court  had  no  jurisdiction to  try  an  offence  committed outside  the State by a subject of the State.  There  is  no discussion  in  the judgment of the question  involved,  and this  single instance is not enough to make out  either  the absence of the State’s legislative authority in this  behalf or the factual non-existence of the relevant law.    It  must therefore be held that the rulers of the  native States  had  prior  to 1947, the authority  to  pass  extra- territorial laws relating to offences committed by their own subjects  and vesting in their own courts the power  to  try them,  except where the contrary is made out by evidence  in the  case of any individual State, and that so far at  least as  Rewa State is concerned, the contrary cannot be held  to have been proved.     The further point that has been raised is that  whatever may  be  the  position of the Rewa  State  before  1947  the attempt of the Rajpramukh of the State of Vindhya Pradesh in so  far  as  he purported to  extend  the  extra-territorial portion  of  any  of the Rewa laws  to  Vindhya  Pradesh  by Ordinances  Nos.  IV of 1948 and XX of 1949 and his  attempt to  introduce  into Vindhya  Pradesh  the  extra-territorial portion of the Indian Penal Code and the Criminal  Procedure Code by Ordinances Nos.  XLVIIII of 1949 and XXVIII of  1949 respectively,  must  fail as he had no  such  authority  for extra-territorial  legislation with reference to  the  basic covenants from which his authority was derived.  These basic covenants   are  as  already  above  shown  the   inter   se integration agreement 1216 dated  18th March, 1948, executed by all the rulers  of  the component  States of Vindhya Pradesh and the  Instrument  of Accession dated 20th July, 1948, executed by the  Rajpramukh in  favour  of the Dominion of India.  Under  the  inter  se integration agreement and by article IX, clause (3) thereof, the  Rajpramukh  was  vested  with the  power  to  make  and promulgate  Ordinances for the peace and good government  of the United State of Vindhya Pradesh or of any part  thereof. Under the Instrument of Accession and by clause (3)  thereof the  Rajpramukh accepted all matters enumerated in  Lists  I and  III of the Seventh Schedule to the Government of  India Act,  1935,  as  matters in respect of  which  the  Dominion Legislature may make laws for the United State.  It has been strenuously   argued  before  us  that  in  view  of   these provisions  the authority of the Rajpramukh for  legislation was  in  substance reduced to the powers of  the  Provincial Legislature  within  the framework of  the  Constitution  of India  as  it then was.  Section 6, subsection (1),  of  the Indian  Independence  Act and section 99(2) as  amended  are relied  on  to show that the Provincial Legislature  has  no power  to  make extra-territorial laws.  It  is  accordingly argued  that the Rajpramukh had no power at least after  the execution  of the Instrument of Accession to amend or  adapt the  Indian Penal Code or the Criminal Procedure Code so  as

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to bring into operation sections 3 and 4, Indian Penal Code, and section 188, Criminal Procedure Code, with the necessary modifications in the State of Vindhya Pradesh.  Though  this argument appears plausible, a careful scrutiny of the scheme of  the integration and accession covenants as also  of  the relevant  provisions of the Government of India Act and  the Indian Independence Act shows clearly that such an  argument is  not  tenable.  The provisions under  the  Government  of India  Act under which the Instrument of Accession has  been executed  keep the position of the Provinces  distinct  from the  position of the acceding States.  Section 5(1)  of  the Government  of India Act while making the provinces as  well as the acceding States, 1217 part  of  the  Dominion of India enumerates  the  two  under separate categories by clauses (a) and (b).  Subsection  (2) of section 6 specifically provided that,    "An  Instrument  of Accession shall specify  the  matters which the Ruler accepts as matters with respect to which the Federal  Legislature  may make laws for his State,  and  the limitations,  if  any, to which the I power of  the  Federal Legislature to make laws for his State, and the exercise  of the executive authority of the Federation in his State,  are respectively to be subject." Section  101  of the Government of India Act in  terms  says that,     "Nothing in the Act shall be construed as empowering the Federal  Legislature  to  make laws for  a  Federated  State otherwise   than  in  accordance  with  the  Instrument   of Accession  of  that  State  and  any  limitation   contained therein."     If  the argument put forward by the appellants’  counsel is correct, viz., that the mere reference to the legislative items  in  respect of which the Dominion  Legislature  could make  laws  applicable to the State of  Vindhya  Pradesh  as Lists  I and III carried with it the  necessary  implication that  the Dominion Legislature alone had the power  to  make laws for the State with extra-territorial operation, and  to that extent therefore curtailed the legislative authority of the Rajpramukh, it would be tantamount to the importation of all  the  limitations  under sections 99  to  104  into  the Instrument of Accession.  This would be contrary to  section 101   of  the  Government  of  India  Act.   There   is   no justification  for  such  a  view  merely  because  of   the reference  to the enumerated items as Lists I and III  which may have been a matter of convenience for reference.  On the other  hand, the Instrument of Accession in terms states  by clause 9 as follows:      "Save  as provided by or under this Instrument  nothing contained  in this Instrument shall affect the  exercise  of any power, authority and rights enjoyed by the Rajpramukh or the validity of any law for the 1218 time  being  in  force  in the  United  State  or  any  part thereof." The authority of the Rajpramukh which is referred to in this clause is not only the unfettered legislative authority  "to make  and  promulgate  Ordinances for  the  peace  and  good government of the United States or any part thereof"  Vested in him by Article IX of the integration Covenant dated  18th March,  1948,  but also that which is vested  in  him  under article VI of the said agreement.  This article vests in him "all  rights, authority, and jurisdiction belonging  to  the ruler  of  each  Covenanting State  and  incidental  to  the government  thereof," There can be no doubt  therefore  that

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if,  as has been pointed out above, the various  Covenanting States and in particular the State of Rewa, had the power to pass extra-territorial laws at least to the extent of making certain acts committed outside the State by its subjects  as offences  and to vest in the State courts authority to  deal with  such  offences,  that power has not in  any  way  been curtailed   either  by  the  integration  Covenant  or   the Instrument of Accession.  It follows therefore that sections 3  and  4,  Indian Penal Code,  and  section  188,  Criminal Procedure  Code,  at  least in so far  as  it  affected  the subjects  and courts of the State, were entirely within  the legislative  competence  of  the States  concerned  for  all purposes of adaptation or amendments.  Now,  so far as sections 3 and 4 of the Indian  Penal  Code are concerned, the amendment brought about by Ordinance  No. XLVIII of 1949 is nothing more and nothing less than a  mere adaptation of these sections for the new set-up and this, as shown  above, was exactly the law already in  force  without formal amendment.  Hence it would follow that the conviction of  the appellants in respect of all the offences  of  which they  are  charged including the  extra-territorial  offence said  to have been committed by the first appellant  at  New Delhi  is not open to the objection under article 20 on  the ground that it is a conviction under an ex post facto law. 1219 As  regards  the amendments in the Criminal  Procedure  Code brought about by Ordinances Nos.  XV of 1948 dated the  31st December,  1948, and XXVII of 1949 dated the 3rd May,  1949, no  detailed consideration is necessary in view of what  has been  held at the outset that the  constitutional  objection under article 20 does not apply to a change in procedure  or change of court.  Items 62 and 63 of section 2 of  Ordinance No’ XV of 1948 would seem to indicate that the  jurisdiction which the criminal courts of Vindhya Pradesh previously  had to try extra-territorial offences was probably lost thereby. If so, that jurisdiction,"as restored under Ordinance  XXVII of 1949 by the amendment thereby of the said items 62 and 63 thus  bringing  it  into line  with  section  188,  Criminal Procedure  Code, with the requisite adaptations.  Hence  the power  of  the  Vindhya Pradesh courts to  hold  trials  for extra-territorial  offences which was  probably  interrupted from  31st  December, 1948, was restored on 3rd  May,  1949, before  the trial in this case commenced with  retrospective operation,  i.e., as from the date of the  prior  Ordinance, i.e., 31st December, 1948.    In  the  result,  we  hold that (1)  The  appeal  to  the Judicial  Commissioner  from the acquittal  by  the  Special Judge  was competent; (2) The trial of the appellants  under the Vindhya Pradesh Criminal Law Amendment (Special  Courts) Ordinance  No.  V  of 1949 is not open  to  objection  under article  14  of  the  Constitution;  (3)  The  criminal  law relating  to the offences charged against the appellants  at the  time of their commission was substantially the same  as that  which  obtained  at the time of  the  convictions  and sentences  by  the  appellate court.  This was  so  both  in respect of offences committed within the limits of the State of Vindhya Pradesh and those committed outside it ; (4)  The law relating to the offence committed by the first appellant outside  the  State of Vindhya Pradesh (at  New  Delhi)  was perfectly   within   the  competence  of   the   appropriate legislative authority at the relevant 1220 time; and (5) Consequent on 3 and 4 above, the objection  to the  convictions  and  sentences of  the  appellants  ,under article 20 is not sustainable.

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   The  appeal  is accordingly directed to  be  posted  for consideration whether it is to be heard on the merits.                      Order accordingly.      Agent for the appellants: Rajinder Narain.      Agent for the respondent: O. H. Rajadhyaksha.