Dan Mall Sharma and Another vs Emperor

Meredith, J.—The petitioners in these two applications have been convicted under Sub-rule (4) of Rule 81 of the Rules (Defence of India Rules) made under the Defence of India Act, 1939, for contravention of Clause (10) of the Mica Control Order, 1940, which is an order made under Sub-rule (2) of the said Rule 81, and have been sentenced by the appellate Court to pay fines of Rs. 50 each.

Clause do of the Mica Control Order requires the keeping of regular accounts, and in each case the finding is that the petitioner had failed to keep regular accounts during certain periods prior to the end of the year 1941.

In these cases the petitioners rely upon a defect in the wording of Rule 81(4) as it originally stood. Rule 81 is merely an enabling rule. It merely provides that Government may in certain circumstances by order provide for certain things. There is nothing in the rule itself which has to be obeyed by any one. Manifestly, therefore, the penalty clause, which is Sub-rule (4) ought to have made persons punishable for contravention of any order made under the rule. As it stood, however, at the time when the petitioners contravened the Mica Control Order, the penalty clause, Rule 81(4), ran as follows:

If any person contravenes any of the provisions of this rule, he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.

This defect was removed by an amendment made by D.C. Department Notification. No. 1500-0R-42, dated 18th July 1942, and the amended Sub-rule now runs:

If any person contravenes any order made under this rule, he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.

The argument now advanced is that when the petitioners contravened the order there was no provision making them punishable for contravening the order, but only for contravening the rule; they did not contravene the rule, and consequently could not be liable to punishment under the penalty clause as it then stood.

It is pointed out further that this very point has within recent months been taken in a number of similar cases before various Judges in this Court, and has invariably succeeded. These cases are Jagabandhu Sahu v. Emperor (1943) 9 Cut. L.T. 18 and Muhamad v. Emperor (1943) 30 AIR 1943 (these two cases have been reported in 9 Cut. L. T. pp. 18 and 19), all decided by Rowland J. Criminal Revision No. 623 of 1942 decided by-Sir Trevor Harries, then Chief Justice, and Criminal Revisions Nos. 733 and 766 of 1942, both decided by Agarwala J.

Mr. C.P. Sinha for the Crown puts forward two propositions. First, he says that, on the general principles of construction of statutes, statutory rules are to be regarded as part of the Act under which they are made, and similarly statutory orders made under statutory rules should be deemed to be part of the rules under which they are made. Hence, any one contravening such an order must be deemed to have contravened the rule under which it was duly made, the order forming in the eye of the law merely an extension of and a part of the rule.

Secondly, he says that Rule 5, Defence of India Rules, as it stood at the time the petitioners contravened the order, provided that breach of an order made under any rule should constitute breach of the rule itself.

As, in my judgment, the Crown must succeed upon the second proposition, it is unnecessary to express any opinion upon the first.

Returning to the second, it is clear that Rule 5 as it now stands is of no relevance. That indeed has been already pointed out by Agarwala J. in Criminal Revision No. 733 of 1942. Rule 5 at present stands as follows:

If any person to whom any provision of these rules relates, or to whom any order made in pursuance of these rules is addressed or relates, or who is in occupation, possession or control of any land, building, vehicle, vessel or other thing to which such provision relates, or in respect of which such order is made--

(a) fails without lawful authority or excuse, himself, or in respect of any land, building, vehicle, vessel or other thing of which he is in occupation, possession or control, to comply, or to secure compliance, with such provision or order, or

(b) evades, or attempts to evade, by any means such provision, or order,--

he shall be deemed to have contravened such provision or order; and in these rules the expression "contravention" with its grammatical variations includes any such failure, evasion or attempt to evade.

Obviously it merely provides that any one who fails in certain circumstances to secure compliance with any provision of the rules or of any order thereunder, or evades or attempts to evade such provision or order, shall be deemed to have contravened such provision or order respectively.

Rule 5 in its present form, however, dates only from 10th January 1942, when it was amended by D.C. Department Notification No. 1020--OR-41, dated 10th January 1942. Prior to that date, it did not say that the person failing to comply, or to secure compliance with, or evading or attempting to evade, such provision or order, should be deemed to have contravened such provision or order. The wording was

shall be deemed to have contravened such provision, of these rules, or, as the case may be, such provision of these rules as authorised the making of such order." In other words, it expressly provided, inter alia, that any one failing to comply with an order made under a rule should be deemed to have contravened the provision of the rule J authorising the making of the order.

Thus, up to 10th January 1942, the penalty clause in Rule 81 was quite in order for a case such as those before us. There was no material defect in the wording. It was only after Rule 5 had been amended that it could be said that any one failing to comply with the Mica, Control Order could be said to have contravened only the order, but not the provisions of the rule itself. The guilt and liability to punishment of the petitioners must be determined in accordance with the state of the law at the time when they did the acts, or made the omissions, for which they were prosecuted. As I have already said, in both cases the breaches of the order were committed before the end of 1941. It follows that there is no defect in the convictions and sentences in these cases, and no ground for interference by this Court in revision.

As for the fact that a similar contention has succeeded in a number of other cases, I have only to say that all the decisions in question are decisions of Judges sitting singly, and are not binding upon this Bench. Apart from that, in some of the cases the offences had been committed after 10th January 1942, and; in those cases where the offences were said to have been committed prior to that date the attention of the learned Judges concerned does not seem to have been drawn to Rule 5 in its original form.

I would dismiss both these applications.

Manohar Lall J

I agree. The wording of Rule 5, as it was before the amendment on 10th January 1942, makes the position quite clear. It then provided that--to quote only the material portions of the rule--

if any person to whom any provision of these rules relates, or to whom any order made in pursuance of these rules is addressed, or relates, (a) fails without lawful authority or excuse, himself, to Comply, or to secure compliance, with such provision or order, or (b) evades, or attempts to evade, by any means such provision, or order,-he shall be deemed to have contravened such provision of these rules or, as the case may be, such provision of these rules as authorise the making of such order.

The Mica Control Order 1940, is an order made under the authority of Rule 81(2). That order contemplates the keeping of regular accounts. As the accused have not kept regular accounts, therefore, they are within the mischief of the terms of E. 5 quoted above.