Peshan Shaikh and Others vs Emperor

Ayyar, J.—The petitioners were convicted and sentenced by the Sub-Divisional Magistrate of Pakaur in Santal Parganas u/s 4 of the Bihar Fowls etc., Cattel Movement Control Order, 1943, and two of them were further convicted and sentenced u/s 353, Penal Code by the same Court by a judgment dated 12th August 1946. There was an appeal to the ganas against this conviction, and by his Additional district Magistrate, that is, on 12th April, 1947, the Santal Parganas Justice Amendment and Miscellaneous Provisions Regulation of 1947 came into force in the provided inter alia that any person convicted by a first class Magistrate could appeal to the Court of Session. On the strength of this provision it was contended, therefore, before Shearer, J., who first heard this application, that the learned Additional District Magistrate had no jurisdiction to hear the appeal and that the order passed by him on 15th May 1947, was illegal and fit to be Bet aside, As a. point of law is involved in this contention, affecting a number of similar applications pending before the Court, the matter has been referred to a Division Bench.

To appreciate the point raised, it will be necessary to give a short history of the provisions made from time to time for the hearing of appeals from convictions in the Santal Parganas and to explain the circumstances in which this point of law has come to be raised. The Santal Parganas Justice Regulation of l893 which is the earliest Regulation to be considered'' provided for appeals from convictions by Magistrates other than the Deputy Commissioner to be filed before the Deputy Commissioner and appeals from convictions and sentences by the Deputy Commissioner to be filed before the Commissioner as the High1 Court. Regulation No. IV of 1933 made no changes in this position relevant to the point in issue, but Regulation III of 1940 provided in Section 4 that the Code of Criminal Procedure, 1898, shall have effect in the Santal Parganas subject to certain modifications among which the relevant provisions are to be found in Clauses (a), (b) and (c) of Sub-section (1) to Section 4. Briefly stated, clauses (a) and (b) provided for appeals to the District Magistrate from convictions by 2nd and 3rd Class Magistrates as well as 1st Class Magistrate other than the Additional District Magistrate and Clause (c) prescribed that from convictions by the District Magistrate or the Additional District Magistrate appeals were to lie to the Sessions Judge. Now Section 2(b) of the Santal Parganas Justice Regulation of 1947 made a further amendment to the 1893 Regulation by substituting the following for Clauses (b) and (c) of Sub-section (1) of Section 4 of the 1893 Regulation:

Any person convicted on a trial held by the District Magistrate, the Additional District Magistrate or any other Magistrate of the 1st Class or any person sentenced u/s 349 or in respect of whom an order has been made or a sentence has been passed u/s 380 by the District Magistrate, the Additional District Magistrate or any other Magistrate of the 1st Class may, subject to the provisions of para. (c), appeal to the Court of Session.

Paragraph (d) Sub-section (1) of Section 4 of the Regulation of 1940 was to be re-lettered as para (c) and referred to appeals to the High Court from convictions by Magistrates specially empowered u/s 30, Criminal P.C., and does not arise for consideration in the present petition. The position created by Section 2 of the Regulation of 1947 is, therefore, that an appeal from a conviction by a 1st Class Magistrate, including a District Magistrate or an Additional District Magistrate, lies hereafter to the Sessions Judge, and with the coming into force of the Regulation of 1947 ft person in the Saatal Parganas convioted by a 1st Class Magistrate'' may appeal to the Court of Session. The contention raised before us is that by virtue of this provision the present petitioners had acquired a right of appeal to the Sessions Judge of Santal Parganas from their conviction by a First Class Magistrate and-that Since this Regulation had come into force when their appeal was still pending before the Additional District Magistrate of Santal Parganas, the learned Additional District Magistrate had no jurisdiction to dispose of the appeal and his order upholding the conviction is illegal,

The argument arises because unlike Regulation in of 1940, which provided in Section 4 that all cases, appeals, and revisions pending on the date on which that Regulation came into force were to be disposed of as if the Regulation of. isiO''had1not been passed or, in another words, under the then existing procedure, the Regulation of 1947 made no such provision in respect of cases, appeals arid revisions pending on the date on which the Regulation of 1947 came in to force. The question, therefore, is whether in the absence of any such specific provision in the Regulation of 1947 the Additional District Magistrate of the Santal Parganas had jurisdication to dispose of the appeal filed by the petitioners, which was pending before him when the Regulation of 1947 came into force in the Santal Parganas.

In the absence of a specific provision in this regard, Section 2 of the Regulation of 1947 must be interpreted with reference to the General Clauses Act. Section 8(c) of the Bihar and Orissa General Clauses Act of 1917 provides that

Where any Bihar and Oriasa Act repeals any enactment hitherto made, or hereafter, to be made. then, unless a different intention appears the repeal shall not affect any right, privilege, obligation, or liability acquired, accrued or incurred under, any enactment so repealed.

and under Sub-section (e) such repeal shall not

affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation. liability, penalty, forfeiture or punishmebnt as aforesaid.

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 repealing Act had not been passed.

The question which now arises is two-fold; firstly whether the Regulation in question can be considered "a Bihar and Orissa Act for the purposes of the General Clauses Act, and secondly whether the provision in Section 2 of the Regulation of 1947 can be regarded as a repealing enactment.

Section 4(7), General Clauses Act of 1917 defines a "Bihar and Orissa Act" as

an Act made by the Llieutenant Governor of Bihar and Orissa in Council under the Indian Councils Acts, 1915 to 1C09, or the Government of India Act, 1916 and includes "a Bengal Act made after the 18th day of January, 1899 which is still ,in force in Bihar and Orissa" etc. It is true that we are here dealing with a Regulation and not with an Act.

The Government of India Act of 1935 does not define a "Regulation"., though Section 92(2) provides for the making of Regulations by the Governor of a province for the peace and good government of an excluded, or a partially excluded area in the province. Section 4(46), Bihar and Oriasa General Clauses Act of 1917 says that a Regulation "shall mean a regulation made under the Government of India Act, 1870, or the Government of India Act, 1915. It is to be observed, in the first place, that1 in the general rules of construction laid down in Sections 6 to 22 and the further provisions. embodied in Sections 23 to 28 with regard to orders rules arcade under enactments, the Bihar and Orissa General Clauses Act speaks only of a Bihar and Orissa Act and omits all mention of "Regulations". This is in striking contrast to the corresponding provisions in the Central Act (General Clauses Act) which specially mention a "Regulation" apart from an Act. There can be no doubt, however, in my opinion, from the [wording of Section 92, Government of India Act, 1985, What a Regulation duly passed by a Governor acting under the provisions of this section is to have the force of and is to be regarded in every way as. a Provincial Act except that it is enacted by the Governor acting in his discretion. Section 92(1) lays down that the executive authority of a province extends to the excluded and partially excluded areas therein but that no Act of the Federal Legislature or of the Provincial Legislature shall apply to such areas unless the Governor by a public notification so directs, and this sub-Section also empowers the Governor to make such exceptions or modifications as he thinks fit in the application of such an Act to an excluded or a partially excluded area. In Sub-section (2), of Section 92 the Governor has been given, the power to

make Regulations for the peace and good government pf any area in a province which is for the time being an excluded area or a partially excluded area and any regulation sq made may repeal or amend any Act of the Federal Legislature or of the Provincial Legislature or any existing Indian law which is for the time being applicable to the area in question.

and goes on to say that such Regulations "shall be submitted forthwith to the Governor-General and until assented to by him in his discretion shall have no effect", and contains the usual further safeguard vesting a power in His Majesty to disallow such Regulations assented to by the Governor-General in the same way as any Act of a Provincial legislature assented to by him. The Santal Parganas Justices Regulation of 1947 was admittedly made by the Governor tinder Sub-section (2) of Section 92 of the Government of India Act, 1985, and received the assent of the Governor, General on the February 1947. u/s 92(2) of the Government of India Act a Regulation made by the Goygrnon may have the effect of repealing or amending any Act of the federal or the Provincial Legislature or any existing Indian Law which is for the time being applicable to the excluded area in question it would obviously be incongruous to hold therefore, that a Regulation duly made, by the Governor, of Bihar is something less than a Bihar and Orissa Act, for the purposes of the General Clauses Act of 1917. If this position is accepted, as I think it must be the petitioners had a right to contend u/s 8(c) of the Bihar, and Orissa General Clauses Act that their former right of, appeal to the Deputy Commissioner from a conviction ,by a first class Magistrate had accrued under the old Regulation and could be exercised to its completion in spite of the fact that the Regulation of 1947 had come into force when their appeal before the Deputy Commissioner was still pending conversely, u/s 8(e) of the Bihar and Orissa General Clauses Act, the Regulation of, 1917 did not affect the appeal which was already pending.

The Santal Parganas Justice Regulation of 1947 merely purported to amend the Santal Parganas Justice Regulation of 1893 in regard to appeals from first class Magistrates. In effect, however, the provision that appeals from convictions by first class Magistrates, other than the District or Additional District Magistrates, would lie to the Court of Session repealed the former provision that such appeals lay to the District; Magistrate. In other, words, the amendment Regulation, of 1947, must be regarded as a repealing enactment so far as the point in controversy is concerned.

In the result, therefore, it must be held that the Additional District. Magistrate of Santal Parganas had the necessary jurisdiction to hear the appeal filed before him by the petitioners and that he was competent to dispose of this'' appeal in the way he did; by his judgment dated 15th May 1947. No other point has been raised on behalf of the petitioners or in the reference made by Shearer J., and the application must be rejected.

Agarwala Ag. C.J.

I agree.