The State of Bihar .v.

Kumar Amar Singh and others

Jagannadhadas J.

Fe6ruary 22

SUPREME COURT REPORTS [1955]

"where immediately before the commencement of this Ordinance (Act) any evacuee property in a Province has vested in any person exercising the power of Custodian under any law repealed hereby, the evacuee property shall on the commencement of the Ordinance (Act) be deemed to have been vested in the Custodian appointed or deemed to have been appointed for the Province under the Ordinance (Act) and shall continue to so vest". , ·, The definitions of the phrase "evacuee property" m the Central Ordinance and by the Central Act are clear and unambiguous so as to include the interest of an evacuee in any property held as a trustee or beneficiary. There is no reason to think that "evacuee property" as defined in the Bihar Ordinance was meant to be anything "different. The words used in this definition are of sufficient amplitude and we are of the opinion that the Bihar 'definition comprised also wakj property and interest therein~ We are also of the opinion that the successive repeals of the Bihar Ordinance by the Central Ordinance and the Central Act and the continuance of the vesting in the Custodian, places the matter beyond any doubt.

This contention must, therefore, fail.

This appeal alw must accordingly succed.

In the result both the appeals are allowed. The appellant in the circumstances will get only the cost; incurred before the High Court on remand in Civil Appeal No. 97 of 1952.

Appeals allowed.

SHYABUDDINSAB MOHIDIN$AB, AKKI

tJ.

THE GADAG-BETGERI MUNICIPAL BOROUGH

AND OTHERS.

rvrvrAN BosE,

JAGANNADHADAS and' B. P, SINHA JT.]

Bombay Mnicipal Boroughs Act, 1925 ·(Bombay Act XVlll of 1925), s. 19 as amended by Bombay Act LIV _of 1954-;-Lc_gal effect thereof-Validity of election-S. 35(3)(6)-Notice , of meeting-Provisions of s. 35(3)'-Whether directory or mimdatory-S. 35(6)-Presence or absence of public-Whether affects the validity of meeting.

>--

- f

1 ..... ).,

I 1

The first respondent-Municipality-governed by the Municipal Boroughs Act, 1925 (Bombay Act XVIII of 1925) consists of 32 councillors, S, (the appellant) being one of them.

The last general -election to the Municipality took place on the 7th May 1951.

The term of the councillors was three years computed from the first

meeting held on 10th July 1951 after the general election. In that 'meeting the 4th and 5th respondents were elected President and

- Vice-President respectively for a term of three years. Act XVIII of 1925 was amended by Bombay Act XXXV of 1954 under which the term of office of the councillors was extended from 3 to 4 years end- -'ing on 9th July 1955.

As the term of respondents 4 and 5 was to expire at the end of three years from the 10th July 1951 and as the term of the Municipality was extended by one year under the Amending Act XXXV of 1954 a fresh election of President and Vice- -President was necessary to fill up the vacancies thus occurring. The Collector called a special general meeting for the 30th July 1954 to elect a President and Vice-President for the remaining period of the quadrennium and nominated the Prant Official (the District Deputy Collector) to preside over that meeting. On the 30th July 1954 the Prant Officer adjourned the meeting to the 3rd August 1954 under instructions from the Collector without transacting any business. "The objection raised by respondent No. 3 against the adjournment was overruled by the presiding Officer. The special general meeting was held on the 3rd August 1954.

An objection raised by S (the :appellant) that under the provisions of the Act a President could not

-be elected for a term less than a year was overruled by the presiding Officer. On this 13 councillors (including S) out of the 32 who were present walked out on the ground that the President was to be •elected fora term less than a year contrary to the provisions of the Act.

The remaining 19 councillors elected the 2nd respondent as the President for the remaining period of the quadrennium. Immedi- ·.ately after that another meting presided over by the newly elected President elected respondent No. 3 as Vice-President.

The same point of order raised by S as in the case of the President was overruled, on which 6 councillors walked out and the meeting was held "by the remaining councillors.

All the 32 councillors were present both on the 30th July 1954 and the 3rd August 1954. Ao application under Art. 226 of the Constitution presented by S questioning rhe validity of the meeting of the 3rd August, 1954, and consequently the validity of the election _of respondents Nos. 2 and 3 as President and Vice-President for the remaining period of the quadrennium was dismissed by the High Court.

'Held, (1) that the meeting' of the 3rd Artgust 1954, in substance though not in form, complied with the requirements of the law for 'holding a valid special meeting and therefore the meeting was not invalid because the record of proceedings would show that whatever "had been done on the 30th July 1954 and the_ 3rd August 1954 had been done under the orders of the Collector. The notice to the coun- <:illors required under s. 35(3) of the Act satisfied the requirements •of three cleat days, that the provisions: of s. 35(3) regarding the ser-

Shyab11ddinsab Mohid; nsab-Akki

The Gadag-Betgeri Municipal Borough and others

c•1955

'Shyab1Uidinsab 'Mohidinsab ~Akki

"'T-he' Gadat-Be_tgen

Municipal Borough

aM otliers

., 1270

SUPREME' COURT''REPORTS [1955)

... vice Of n6tice· are .. fOirecto:ry:·aridi-not'1rn-a.rld!i.toty; i::andnthavH1ny omis~ > r

sions in the manner'bf service-of thenOtice are 'mere irregularities "".rhich would not vitiate "the proceedings unless it is :shown that those ; irregularities had prejudicially affected the proceedings which had not been alleged or proved in the present case. All the councillors constituting the Municipality were present on both the occasions namely the 30th July 1954 arid the •3rd 'August 1954 and thus had ample notice of the meeting to be held on the 3rd August 1954, the 'time arid plate 6£ the meeting and the busint:ss to be transacted, "'?- That under the provisions of s. 35(3) of the Act the presence at or -... the absence from the meeting of the members of the' public has no 'legal consequence so far as the validity of the election is concerned;

(2) that as s. 19 of the Bombay-Borough,.Act, (Bombay Act XVIII of 1925) had been amended by the Bombay Municipal Boroughs Act, •1954 (Bombay Act• LIV of 1954) .and was retrospective in its operation, .it had 1 the •effect .of curing any illegality or

irregt.ilarity-in the election with reference to .. the provisions of s. 19 of the Act and therefore respondents Nos .. 2 and 3. had been validly elected as President •and Vice-President, respectively.

King v .. The .General Commission-ers of" Income-tax rfor ·souihampton, Ex pane W. ; M. Singer ([1916] 2 K.B.'249)and Mukerjee, .Qfficial ."Receiver v. Ramratan Kuer ([1935] L. R. 63 I. A.· 47),

referred tO.

 CrvrL APPELLATE JuRISDICTION : Civil Appeal 'No. : 215 of 1954.

Appeal hy 'Special Leave' from the Judgment arid Order 'dated . the 23rd day of 'August 1954 of the High Court of Judicature .at Bomb; iy in Special Civil. Appli- . cation No. 1665 of 1954 under Aricle . .226 of the Con- . stitution of India.

R . . :B. 'Kotwi:tl, I '.B. Dadachanji _and , Rajinder Narain, forthe appellant.

Naunit:Lal,. for respondents Nos. 1 to 3. .).. i

1955.

Eebruary 22. .The Juc.lgment .of .the .Court was delivered by

.SINHA • J.-This is an.appeal-by. special.leave against

t the judgment and •order <'dated 'the 23rd August 1954 of the "High 'Court of I Judicature at 'Bombay, dismissing . the appellant's .petition for a writ of quo warrantr> or any other appropriate writ "directed , against the , election of tihe •2rid .and 3rd •respondents as .President ~"- ., and Mice, Presi'dent respectively of ·.the • Gadag-Berger?

:S.C.R.

., SUPREME. COURT, REPORTS 1271

-", .-MuniJ:ipal (8or-ough, .. the 1st , respondent tin this, , appeal.

The .facts of this case are not in .dispute ,, and may ,, shortly be stated .as follows : The 1st respondent is a municipality .governed by the provisions of the Munici- •rpal Boroqghs -Act (Bombay Act XVIII of 1925) which , hert; inafter . shall be referred .to as the Act for the, sake

'1 • of brevity. The appellant is one of the 32 councillors constituting the municipality.

The last general election to the municipality took place on the 7th May 1951. The term , of the _councillors 1 was three years computed from the date of the first general meeting held after the general election aforesaid-in this case the 10th July 1951. In that meeting the 4th and 5th respondents were elected President and Vice-Presi-

. .i... . dent respectively of the municipality for a term of

, three years. The Act was amended by Bombay Act

XXXV of 1954, under which the term of office. of the councillors was extended . from 3 to 4 years ending on the 9th July 1955. As the term of respondents 4 and 5 aforesaid . was to expire at the end of three years from the 10th July 1951 and as the term of the municipality was extended by one year under the amending t-, Act aforesaid, the vacancies thus occurring had to be filled up by , a . fresh election of President and Vice-President. The. Collector therefore called a special general meeting of the municipality to be. held on the 30th July 1954 to elect a President and Vice-President for the remaining period of the quadrennium. The Collector had nominated the Prant Officer (the District Deputy Collector) to preside over that special general meeting. On . the 30th July 1954 the Prant Officer

-~- under instructions from the Collector adjourned the meeting to the 3rd August 1954 without transacting any business, the only item on the agenda being .the election of the President and Vice-President. , The 3rd respondent raised a point of_ order against the adjournment but the presiding _officer aforesaid overruled that objection. _Hence the special general .meeting . was held on the 3rd August 1954. At that meeting the appellant raised a point of order that _under the , provi- _ _, sions of the _Act a -president could not be elected for

S Shyabuddinsab . . Mohidinrab Akki v The Gadag-Betgeri Munricipal Borougho , and otherr

Sinha].

Sll)'abuddinsab Mohidinsab Akki v.

Tht Gadag-Betgeri Municipal Borough and others

Sinha J

a term less than a year and that therefore the pre>· posed election would be in the teeth of those provisions. The presiding officer who was the same person who had adjourned the meeting on the 30th July 1954 overruled that objection too. Thereupon 13 out of the 32 councillors who were present walked out on

, ... -,...

the ground that they did not propose to participate '

in a" meeting in which the proposal was to elect a .., President for less than a year contrary to the provisions of the Act.

The appellant was one of those 13 councillors who walked out. It may be added that the full strength of the municipality is 32 councillors all of whom were present 'both on the 30th July 1954 and the 3rd August 1954.

The remaining 19 councillors proceeded to transact business and elected the .-'- 2nd respondent as the President, the proposal being that he "should be President of the municipality for the remaining period of the quadrennium" and that was the proposal which was carried.

Immediately after the election of the President another meeting was held for the election of the Vice-President under the presidency of the newly elected President (the 2nd respondent). The appellant raised the same point '-•

of order as he had done in the case of the election of the President and that was also overruled.

Thereupon six of. the councillors present including the appellant walked out and the remaining councillors elected the 3rd respondent as the Vice-President:

The appellant moved. the High cOur.t o~ Bombay under art. 226 of the Constitution for a writ .of quo warranto or any other appropriate writ or order or _>.- directioi: against , the 2nd af\d 3r.d respondents. "restrain.ing them from usur.ping the office of , the President . il"d .Vice' President . respectivelY. .· of the opponent No. 1 Muni, cipality and restraining them from performing any d.uties and from . exercising any powers 1s

Prsident and V, ice-President, respectively". The High Court held that the election of the 2nd and 3rd respoI\dents. as '1\ot illegal . and disII).issed tfi.e . application.

It held that on a proper cons.tfl!ction of the relevant provisions of the Act it was not correct to say that the term of office of the councillors or of the newly J ...

" "elected President and Vice-President shall end with the 9th July 1955; that the intention was to elect the President and the Vice-President for the remaining term of the municipality which was not only a period

of four years certain but an additional period up to the date when new President and Vice-President

~ would be elected and take over after a fresh general ...- election; that the adjournment of the meeting of the 30th July was not beyond the powers of the presiding officer; and that consequently the meeting of the 3rd August was not vitiated by any illegality. It was also pointed out by the High Court that all the councillors constituting the municipality had nofr:;:: of the adjourned meeting and did as a matter of fact attend _... that meeting and that even if there was any irregularity in the adjournment on the 30th July 1954 that did not affect the illegality of the adjourned meeting and the business transacted therein.

The appellant moved the High Court for leave to appeal to this court but that application . was rejected. The appellant then applied to this court for special leave to appeal which was granted on the 3rd t' September_ 1954.

It has been argued on behalf of the appellant that the meeting held on 3rd August 1954 as aforesaid was invalid for the reasons :

1. that it was not an adjourned meeting inas- • much as the meeting of the 30th July 1954 had not been validly adjourned,

2. that it had not been called by the Collector, and

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3. that the written notice required by section 35(3) had not been given and in any event, had not been served and published as required by law.

Secondly it was urged that the meeting of the 3rd August being thus invalid, the business transacted at that meeting, namely, the election of the President

was equally invalid. Thirdly it was urged that the election of the President being invalid, the meeting held that very day under the presidency of the Presi-

-~~ dent thus elected was also invalid and the election of the Vice-President consequently was illegal. It was

Shyabuddinsab Mohidinsab Akki v.

The Gadag-Betgeri Municipal Borough and others

Sinha J.

19·55)\

ShjabulfdinSab_ Mohidinsabr Akki b.

v •.

The; Gadag-Beigm \ Municipal Borough.A.

amt.others~

Siriha~.J.:

further argued' that the .election •1 of the President and

the V:ice~President being.: in . violation of section 19 of the· Act:. was invalid. on that ground also; and finally, that the amendment of section 19 by the amending .

Act LIV of. 1954 ' after leave to appeal had been granted by· this court could.· not affect;. the present proceedings which were then pending even though the amending.•Act purported to .make. it:retrospective~.

On behalf of respondents l," 2 and '.3 who only have appeared. in this' court, it has been urged that a President and Vice-President could be elected for a term of less than one year as section 19 of . the Act was . subject to section 23 ( 1) (A) ; that in any view of the matter, , section 19 as amended by the amending Act LIV of . 1954 rendered the election beyond question as the Act in terms was meant to validate .all' elections held between the passing of. the amending Act XXXV of 1954 and the amending Act LIV of 1954; that the presiding officer had inherent, if not statutory power to adjourn the meeting of the 30th July 1954 and that ' in any event: the meeting held on the 3rd August 1954 could be treated as a fresh meeting . called by the Collector and that any irregularity in serving the notice or in the appointment of the presiding officer was cured by the provisions of section 57' of the Act.

It was also argued that the appellant was not the councillor who had' objected to the adjournment of the meeting of the 30th July and-' could· not' therefore object to it at a later stage. Finally: it· was argued that' the appellant had" no right to a•· writ or order prayed for as he had not been injured in any sense.

It • would thusappear that there are two main' questions in controversy .. between the, parties, namely,

(1) whether themeeting-of the 3rd August, 1954 had been validly held; and

(2) whether the president and, the vice-president having been elected. "for; the remaining period of. the quadrennium" had; been validly elected,

There are a number of subsidiary questions bearing upon thesetwo' main questions which h:\ve been canvassed before"'us:·

S.G.Ri.

SUPREME~COUR'f REPOlliTS• 1275

A good deal!ofrargument was addressed to us contending that the presiding. officer had no power to .. ad-· journ the meeting• of the 30th July, 1954 in view of the provisions of section .35 ( 11) of the Act. In this connection reference was" also made. to .• the proviso,. to ..

section

19-A(2).

Those provisions, it was, argµed,'., point to the conclusion that the powers of the presiding officer . are• the same as . those of the president of a. municipality when presiding, over an ordinary meeting of the municipality except that section,. 35(11) relat-: ing to adjournments had been qualified only to this extent by the proviso aforesaid, that the Collector or '. the officer presiding over the meeting for the purpose . of holding an. election of the president or r vice-preside.rJ.t: may refuse to 1 adjourn such a , meeting, in. spite of the wishes of the majority. of the members present tothe contrary. It was also argued that the High court had wrongly taken the view that the. presiding. officer had the inherent right to adjourn the meeting.

Reference was made to certain passages in "The Law of Meetings" by Head, "The Law . on the Practice of Meetings" by Shackleton, and "Company. Meetings'1 by Talbot. In our opinion, it is unnecessary. for the

purpose of. this case to pronounce upon the merits of that controversy in the view we• take of the meeting of the 3rd August, 1954, assuming that the meeting of1

the 30th July, 1954 had been adjourned without authority.

It is common ground that it was the Collector who called the meeting of the 30th July 1954 and that it• was under instructions from the Collector that that meetjng was adjourned. Under the provisions of section 23 ( 1 )(A), on the expiry of the term of office . of the president. or vice-president as determined by the municipality under section 19(1) of. the Act, a new presidentor vice-president shall be elected within 25 days from the date of such expiry. The provisions of section 19-A which relate to the procedure for, calling a meeting of a, newly constituted municipality for the election of a president and. vice-president have·

been made applicable to the calling. of a meeting and the procedure to be followed at such' meeting. for the ·

1955,,.

Shyabuddinsnb ,, Mohidinsab-Akki •

Th£ Gadag-Betgeri-.

Munifipal Bnrough •

and. othtrs .

Sinha,].

Shjabuddinsab Mohidinsab Akki v.

The Gadag-Betgeri Municipal Borough and others

Sinha J. ·

election of a president. Section

19-A requires the Collector to call a meeting for holding such an election. Such a meeting shall be presided over by the Collector or such officer as the Collector may by order in writing appoint in this behalf. The Collector or his nominee, when presiding over such a meeting, shall have the same powers as the president of a municipality when presiding over a meeting of the municipality has, but shall not have the right to vote.

On the 30th July, 1954 a special general meeting had been called by the Collector for the election of the President; In the proceedings of that meeting it has been recorded that "Under instructions from the Collector of Dharwar the presiding authority adjourns the meeting to i 3rd August 1954 at 3 P.M.". At that meeting all the 32 councillors were present and admittedly in their presence the presiding officer declared openly that the meeting will be held on the 3rd August 1954 under instructions from the Collector concerne<l. When the meeting was held on the 3rd August 1954 at 3 P.M. as previously notified, again the 32 councillors were present. The proceedings show that the same Prant Officer "occupied the chair as authorised by the Collector".

The presiding authority read out and explained to the members present the following telegraphic message from the Collector :

"Government have directed to hold election of President of Gadag Municipality on 3rd August as already arranged.

Hold election accordingly today without fail".

At this meeting the appellant raised two points of order, (1) that the election of the president for . the remaining period of the quadrennium as mentioned in the agenda was illegal, and (2) that the meeting was not an adjourned meeting of the municipalitv and was also illegal because it was under the instructions of the Collector that the adjourned meeting was being held and that the Collector had no such power.

The minutes of the proceedings further show that "the presiding authority ruled out the points of order on the ground' that this was a special meeting called by the Collector for the election of the President and

..• .

} ...

• . •

_ ...

...

 the election has to be held as already fixed". After the ruling given by the presiding authority, 13 mem-· bers including the appellant expressed a desire to walk out and walked out with the permission of the presiding authority. The remammg members, as already. indicated, continued the business of the meeting and the proposal that the 2nd respondent should be elected president of the municipality for the remaining period of the quadrennium after having been duly made and seconded was carried unanimously and the meeting terminated.

It would thus appear that the meeting of the 3rd August 1954 for the election of the president had been called by the Collector who had authorized the Prant Officer to preside over that meeting and that the 2nd respondent was duly elected president. Under section 35(3) of the Act, for such a special general meeting three clear days' notice has to be gwen "specifying the time and place at which such meeting is to be held and the business to be transacted thereat shall be served upon the councillors, and posted up at the municipal office or the kacheri or some other public building in the municipal borough and also published m a local vernacular newspaper having a large circulation if such exists".

It has been contended on behalf of the appellant that the notice required by section 35(3) contemplates a written notice to be served and published in the manner specified, and that the meeting of the 3rd August 1954 could not be said to have been held after complying with the terms of sub-section

(3) of section 35, It 1 was also contended that the requirements of section 19-A(l) and (2) have also not been complied with because there is no evidence that the Collector had called that meeting or that he had made an order in writing that the presiding authority had been authorized to preside over that meeting. In our opinion, there is no substance in any one of these contentions. From the record of the proceedings of the proposed meeting of the 30th July 1954 and the actual meeting on the 3rd August 1954 it is clear that whatever had been done had been done under the orders of

• 7-90 S.C. In1ia/59

Shyabutidinsab Mohidinsab Akki.

The Gadag-Betgeri

Municipal Borough

and others

Sinha J.

1955

Shyabuddi'ISab Mbhidinsab Akki

TM- Gadag-BUgen Municipal BorougN

and others

Sinlia ].

the Collector. He: had called the meeting of the 30th July as also of the 3rd August 1954. It was he who had appointed the Prant Officer as the presiding officer for both those meetings. It is true that the notice of the meeting of the 3rd August 1954 had not been given in writing but had only beerr intimated to all the councillors who were present at the meeting of the 30th July

1954. The notice amply satisfies the requirement of three days' clear notice, though it was not in writing. It had indicated the time of the meeting and the business to be transacted. Under section 35(4) the ordinary venue of a meeting is the municipal office unless otherwise indicated in the notice. It is also true that ; the notice was not served in the manner indicated in sub-section. (3) of section 35 of the Act There is no evidence that there existed a local vernacular newspaper with large circulation, in which the notice of the meeting could be published. The question is, do those omissions render the notice ineffective in law. That could only be so if those provisions were held to be mandatory. The following provisions (omitting the words not material to this case) would show that those provisions of section 35(3) are directory and not mandatory. and that any omissions in the manner of service of the notice are mere irregu-· larities which would not vitiate the proceedings unless it was shown that those irregularities had prejudicially affected the proceedings :-

"No resolution of a municipality .......... shall be <kerned im, alid on account of any irregularity in the service of notice upon any councillor or member provided that the proceedings of the municipality ..... . . . . . . . . . were , not prejudicially affected by such irregularity''.

Fortunately for the respondents, all the councillors constituting the municipality were present on both the occasions, namely, 30th July and 3rd August, 1954.

Hence they had ample notice of the meeting to be held on the 3rd August, 1954, the time and place of the meeting and the business to be transacted.

It has not been either alleged or proved that the irregularities in the service of the notice or the omissions com-

"""\ • plained' of had prejudicially affected the proceedings.

But it was contended that as the notice had. not been posted up at the municipal office or the_ local kacheri or some other public building and had also not been published in a local vernacular newspaper, if there were one, though all the councillors were present on 3rd August, 1954, the members of the public had no • 1 such notice and naturally therefore could not be pre- ,. sent at that meeting.

In this connection it was pointed out that sub-section ( 6) of section 35 provides that every such meeting shall be open t~ the public, unless the presiding authority directs to. the contrary.

It is evident from the provisions of that sub-section that though the presence of the public at such meet~ ings may be desirable, it is not obligatory. The presence at or the absence from such a meeting of the members of the public has no legal consequence so far as the validity of the election is concerned. It must therefore be held that the meeting of the 3rd August, 1954 in substance, though not in form, complied with the requirements of the law for holding a valid special general meeting and that therefore that meeting was not invalid, assuming, as already said, that the order r" of the presiding authority adjourning the meeting of the 30th July, 1954 was not authorized. It has to be remembered in this connection that such a special general meeting can be presided over only by the Collector or the person author.ized by him and if either the Collector or his nominee does not hold the meeting, it is not competent for councillors present to elect their own chairman for presiding over such a meeting.

Therefore if the presiding authority admittedly under instructions from the Collector refused to proceed with the elections on the 30th July 1954, the councillors present could not hold a meeting of their own with a president of their own choice and transact the only business on the agenda, namely, the election of president. Hence, rightly or wrongly, if the meeting called for the 30th July was not held, another meeting had to be held for the purpose within 25 days of the occurrence of the vacancy.

In this case, as a

Shyabuddinsab Mohidinsab Akkf

The Gadag-Betgeri.

Municipal Borough

and others

Sinha J.

Shyabuddinsab, Mohidinsab Akkf - v, The Gadag-Betgeri Municipal Borough ·

and othe'rs

Sinha J.

SUPREME.COURT REPORTS [1955],

result of the 1 expiry of the original term of office f the president and vice-president, another meeting giving the 'required three days statutory notice had to be held.

The meeting held on the 3rd August. 1954 was such a meeting. Indeed, there were some. omissions in the manner of publication or service of the notice but those in law were mere irregularities which do not have the effect of vitiating the election held at that meeting.

The election of the president therefore, if not otherwise invalid, could not be assailed on the ground of the irregularity in the service or publication of the notice, in the special circumstances of this case.

If all the councillors had not been present on the 30th July or had not been informed of the proposed meeting of the 3rd August 1954, other considerations may have arisen but in this case it is clear that there was absolutely no prejudice to any, party or individual or the municipality as a whole.

But it was further contended that the walking out of the .13 councillors rendered the meeting infructuous. In our oprmon, such a result does not follow from the voluntary act of the 13 councillors who chose to walk out. It was not even suggested that there was no quorum for the special. general meeting after the 13 councillors walked out.

The next question is whether the provisions of section 19(1) as they stood on the 3rd August 1954 render the election of the president and the vice-president on the 3rd August 1954 invalid as it was "for the remaining period of the quadrennium".

The High Court has taken the view .that the remaining period of the quadrennium would not necessarily end on the 9th July 1955, in view of the proviso to section 19( 1) "that the term of office of such president or vice-president shall be deemed to extend to and expire with of the on which his successor is elected". In view of the events that have happened it is not necessary for us to pronounce on the correctness or otherwise of that decision. After the judgment of the High Court and after the grant of special leave by this court, the Bombay Legislature enacted Act LIV of 1954 which was published in the Bombay Gazette on the 14th

' -

.• '*

S.C.R.

October 1954. Sections 2 and 3 of the amending Act are in these terms :

"2. In section 19 of the Bombay Municipal Boroughs Act, 1925, in sub-section (1),-

(1) after the words 'not less than one year' the words 'or not less than the residue of the term of office of the municipality, whichever is less' shall be inserted;

(2) for the words 'three years' the words 'four years' shall be substituted. ·

3. (1) The amendments made by this Act shall be deemed to have come into force on the date on which the Bombay District Municipal arid Municipal Boroughs (Amendment) Act, 1954, came into force (hereinafter in this section referred to as 'the said date') and all elections to the office of the president or vice-president, held on or after the said date and before the coming into force of this Act, shall be deemed to be valid as if this Act had been in force on the said date; and any person elected to the office of the president or vice-president at any of such elec-

- tions shall not be deemed to have been illegally elected merely on the ground that the residue of the term of

office of the municipality being less than _one year at

the time of such election, he would hold his office for a term less than one year in contravention of section 19 of the Bombay Municipal Boroughs Act, 1925, as it was in operationbefore the coming into force of th~A~ -

(2) Nothing contained in this section shall affect the judgment; decree or order of any competent court, passed before the coming into force of this Act, holding any of such elections invalid on the ground specified in sub-section (l)".. _

- It has not been contended that section 19 as amended

by Act_ LIV of 1954 does not in terms cover the elections now impugned; nor that section 3 of the amending Act quoted above is not retrospective; but it has been urged on behalf of the appellant that it is not . retrospective to the extent of affecting pending proceedings. In terms the amendment ip question is deemed to have come into force on the 11th May 1954

.. Shyabuddinsab Mohidinsab Akki

. v • . The Gailag-Betgeri

Municijal Borough

and others

Sinha J.

1955

.S/rJtibuddinsab 'Mohidinstib Aiki

:v. rhe ~Gadag.!_Bttgtri 'Munitipal Boroirgh

and others

Sinha J.

1.'282 'StJP.REME COURT .RrEPORTS [t955]

on which date the .amending Act XXXV of 1954 had come into force. Section 3 in terms .also declares that .all .eleations to .the office of president and vice-president held on or .after the llih May .1954 and before .the coming into force of the amending Act shall be .deemed to 'have been valid. The section also declares in unequivocal terms that such an. election .shall riot be questioned simply on the ground of contravention of section 19 on which the election. of the 2nd and 3rd respondents had been questioned before the High Court.,· The legislature . apparently thought fit to declare 'beyond all controversy that an election of president or vice-president . for the unexpired portion of -the term of a municipality .could not b.e questioned on the ground that the provisions of section 19 as it stood before the amendment had been contravened.

But it .was argued on behalf of the appellant that in terms the amendment had not .been. made applicable to pending litigation and that therefore this court should hold that the amendment did not have the effect .of validating the elections which . were already under challenge in a court. Np authority. has been cited . before us in support . .of the contention that unless there are express words in the . amendi'ng statute to ihe effect that the amendment shall apply to pending proceedirgs _also, it cannot affect such proceedings. There • is . clear. : a11thority . to , the contrary in the following dittum of. Lord Read.ing, C.J. in the case of The King v. The General Commissioners of. lncometax for .Southampton; Ex .. parte. W. M. $inger(• );-

"I -.cannot accept the contention of the applicant that· an enactment 'can only take away vested rights of .action for which .legal proceedings have been .commenced if there are in the enactment express words to that •effect. '.Phere is' no authority for this proposition,· and 'I -do .not see . why in principle it .should. be the law: But it is necessary that dear . language should be used -to .make the retrospective . effect aP.plicable to proceedings . commenced .. before . the : passing . of ' . the statute'!, · 'Tfuif 'was a" case fo w1Uch the Act in 'queStion had

(I), 1Cl91GjzicJi.249,25g;'" '.•: . '"'' .,. :o;, '

' .

) ....

\ ...

validated assessments made by commissioners for wrong parishes. It was held by the court that the retrospective effect of the relevant section extended to proceedings for a prohibition commenced before the Act came into force and the rule nisi for a prohibition was therefore discharged. In every case the language of the amending statute has to be examined to find out whether the legislature clearly intended even pending proceedings to be affected by such statute.

A number of authorities were cited before us but it is only necessary to refer to the decision of their Lordships of the Judicial Committee in Mukerjee, Official Receiver v. Ramratan Kuer (1), which is clearly in .point.

In that case while an appeal had been pending before the Judicial Committee the amending Act had been passed clearly showing that the Act was retrospective in the sense that it applied to all cases of a particular description, without reference to pending litigation.

In those circumstances their Lordships pointed out that if any saving were to be implied in favour of pending proceedings, then the provisions of the statute would largely be rendered nugatory. Those observations apply with full force to the present case, inasmuch as if any saving were to be implied in favour of cases pending on the date of the amendment, the words "all elections to the office of the president or vice-president, held on or after the said date and before the coming into force of this Act, shall be deemed to be valid" could not be given their full effect. As there are no such saving clauses in express or implied terms, it must be held that the amendment was dearly intended by the legislature to apply to all cases of election of president or vice-president, whether or not the matter had been taken to court. It is the duty of courts to give full effect to the intentions of the legislature as expressed in a statute. That being so, it must be held that the amending Act had the effect of curing any illegality or irregularity in the elections in question with reference to the provisions of section 19 of the Act.

For the reasons afores; i.id it must be 'held that the ' . ' . ' ·. (I)' [1935] t.R. 63!.A. 47,

•955

Shyabuddinsab Mohidinsab Ak(<i

The Gadag-Betgeri Municipal Borough

anil others

Sinha J.

Shyabuddinsab Mohidin.Jab Akki

The Gadag-Betgeri

Municipal Borough and others

Sinha J.

February 23

meeting of the rd August 1954 had. been validly held and that there is no illegality in the election. of the 2nd and 3rd respondents as president and vice-president respectively. We accordingly affirm the orders of the High Court, though not for the same reasons.

The appeal fails and is dismissed with costs.

Appeal dismissed.

HANS MULLER OF NURENBURG .

tJ.

SUPERINTENDENT, PRESIDENCY JAIL,

CALCUTTA AND OTHERS.

[MuKHERJEA C.J., S. R. DAs, VIVIAN BosE, .

BHAGWATI and }AGANNADHADAS JJ.)

Constitution of India, Arts. 14, 21 and 22-Entry 9 and entry 10 in Union list of Seventh Schedule to Constitution-Preventive Detention Act 1950 (Act V of 1950), s. 3(1)(b)-Whether ultra vires Constitution-Foreigners Act 1946 (Act XXXI of 1946), s. 3(2)(c)- Whether ultra vires , Constitution-Extradition Act 1870 and Foreigners Act, 1946--Distinction between.

The petitioner, a West German subject, was placed un<; Ier preventive detention by an order of the West Bengal Government under ' 3( 1) (b) of the Preventive Detention Act 1950 on the ground that he was a foreigner within the meaning of the Foreigners Act 1946 and that it had becoine necessary to make arrangements for his expulsion from India ahd tht; refore he was required to be detained until the issue of an appropriate order from the Central Government.

The questions for determination in the case were :-

(i) whether s. 3(1)(b) of the Preventive Detention Act was ultra vires the Constitution inasmuch as it contravenes Arts. 14, 21 and 22 of the Constitution and whether it w:is beyond the legislative

competence of Parliament to enact such a law; '

(ii) whether, in any event, the detention was invalid as .it was made in bad faith.

Held that the Impugned portion of the Preventive Detention Act and i. 3(2)(c) of the Foreigners Act on which it is based are not ultra vires the Constitution inasmuch a:~;

( i) in view of Entry 9 and Entry 10 0£ the Union list of the Seventh Schedule to the Constitution, the language of which must be given the widest meaning, the legislative competence of Parliament to deal with the question of preventive detCntion of foreigners ·

) ..

Jagannadhadas J.

SHYABUDDINSAB MOHIDIN$AB

GADAG-BETGERI MUNICIPAL BOROUGH

Bombay Mnicipal Boroughs Act, 1925

s. 19

S. 35(3)(6)

s. 35(3)

S. 35(6)

Bombay Act XVIII of 1925

Bombay Act XXXV of 1954

Amending Act XXXV of 1954

30th July 1954

3rd August 1954

Art. 226

3rd August, 1954

s. 35(3)

s. 35(3)

•3rd 'August 1954

s. 35(3)

s. 19

Bombay Act XVIII of 1925

s. 19

.General Commission

B. 'Kotwi

I '.B. Dadachanji

Rajinder Narain

.SINHA

Bombay Act XVIII of 1925

7th May 1951

Bombay Act

art. 226

Muni

3rd t' September_ 1954

section 35(3)

ShjabulfdinSab_ Mohidinsabr Akki

; Gadag-Beigm \ Municipal Borough

section 19

section 19

section 19

section 23

section 19

section 57

section

19

Shackleton

Talbot

30th July, 1954

section 23

section 19(1)

section 19

Shyabuddinsnb

Sinha

Section

19

Dharwar

Gadag Municipality

section 35(3)

section 35(3)

section 35

section 19

Shyabutidinsab Mohidinsab Akki

Shyabuddi'ISab Mbhidinsab Akki

section 35(4)

section 35

section 35(3)

30th July and 3rd August, 1954

section 35

Shyabuddinsab Mohidinsab Akkf

August. 1954

section 19(1)

9th July 1955

section 19( 1)

14th

' -

Sections 2 and 3

section 19

Bombay Municipal Boroughs Act, 1925

section 19

Bombay Municipal Boroughs Act, 1925

section 19

section 3

Shyabuddinsab Mohidinsab Akki

Gailag-Betgeri

Municijal Borough

Munitipal Boroirgh

Section 3

section 19

section 19

W. M. $

section 19

Shyabuddinsab Mohidinsab Ak(<i

Shyabuddinsab Mohidin.Jab Akki

HANS MULLER OF NURENBURG

MuKHERJEA

S. R. DAs

BHAGWATI

AGANNADHADAS

Constitution of India

Arts. 14, 21 and 22

s. 3(1)(b)

s. 3(2)(c)

Constitution-Extradition Act 1870

Foreigners Act, 1946

Preventive Detention Act 1950

Foreigners Act 1946

India

Central Government

s. 3(1)(b)

Arts. 14, 21 and 22

Parliament

Foreigners Act

Seventh Schedule


Shyabuddinsab Mohidin.Jab Akki

The Gadag-Betgeri

Municipal Borough and others

Sinha J.

February 23

SUPREME COURT REPORTS [1955]

meeting of the rd August 1954 had. been validly held and that there is no illegality in the election. of the 2nd and 3rd respondents as president and vice-president respectively. We accordingly affirm the orders of the High Court, though not for the same reasons.

The appeal fails and is dismissed with costs.

Appeal dismissed.

HANS MULLER OF NURENBURG .

tJ.

SUPERINTENDENT, PRESIDENCY JAIL,

CALCUTTA AND OTHERS.

[MuKHERJEA C.J., S. R. DAs, VIVIAN BosE, .

BHAGWATI and }AGANNADHADAS JJ.)

Constitution of India, Arts. 14, 21 and 22-Entry 9 and entry 10 in Union list of Seventh Schedule to Constitution-Preventive Detention Act 1950 (Act V of 1950), s. 3(1)(b)-Whether ultra vires Constitution-Foreigners Act 1946 (Act XXXI of 1946), s. 3(2)(c)- Whether ultra vires , Constitution-Extradition Act 1870 and Foreigners Act, 1946--Distinction between.

The petitioner, a West German subject, was placed un<; Ier preventive detention by an order of the West Bengal Government under ' 3( 1) (b) of the Preventive Detention Act 1950 on the ground that he was a foreigner within the meaning of the Foreigners Act 1946 and that it had becoine necessary to make arrangements for his expulsion from India ahd tht; refore he was required to be detained until the issue of an appropriate order from the Central Government.

The questions for determination in the case were :-

(i) whether s. 3(1)(b) of the Preventive Detention Act was ultra vires the Constitution inasmuch as it contravenes Arts. 14, 21 and 22 of the Constitution and whether it w:is beyond the legislative

competence of Parliament to enact such a law; '

(ii) whether, in any event, the detention was invalid as .it was made in bad faith.

Held that the Impugned portion of the Preventive Detention Act and i. 3(2)(c) of the Foreigners Act on which it is based are not ultra vires the Constitution inasmuch a:~;

( i) in view of Entry 9 and Entry 10 0£ the Union list of the Seventh Schedule to the Constitution, the language of which must be given the widest meaning, the legislative competence of Parliament to deal with the question of preventive detCntion of foreigners ·

) ..

is clear and this covers not only s. 3(l)(b) of the Preventive Deten

tion Act but also the Foreigners Act, 1946, in so far as it deals with the powers of expulsion and the right of the Central Government to restrict the movements of foreigners in India and prescribe the place of their residence and the ambit of their movements in the land;

(ii) the Preventive Detention Act was a comprehensive Act dealing with preventive detention and was framed with the limitations of Arts. 21 and 22 in view. Section 3(1)(b) of the Preventive Detention Act was enacted to bring the unrestrained power given by s. 4(1) of the Foreigners Act into line with the provisions of the Constitution;

(iii) section 3(1)(b) of the Preventive Detention Act is reasonably related to the purpose of the Act, namely preventive detention, inasmuch as the right to expel a foreigner conferred by s. 3(2) of the Foreigners Act on the Central Government and the right to make arrangements for expulsion include the right to make arrangements for preventing any breach or evasion of the order; and the Preventive Detention Act confers the power to use the means of preventive detention as one of the methods of achieving this end;

(iv) the State Government is competent to make an order of detention under the law in anticipation of an order of expulsion that is about to be made, or which may be made by the Central Government on the recommendation of the State Government which, though seized with certain powers of Government is not competent to make an order of expulsion itself. Unless a State Government has authority to act in anticipation of orders from the Centre it might be too late to act at all;

( v) the impugned section does not offend Art. 14 of the Constitution inasmuch as differentiation between foreigner and foreigner as envisaged ins. 2(a) ands. 3(2)(c) of the Foreigners Act 1946 and s. 3(1)(b) of the Preventive Detention Act is based on a reasonable and ration~! classification.

There is no individual discrimination, and reasons of State may make it desirable to classify foreigners into different groups.

On the question of good faith, held, that the circumstance of the case . did not show bad faith on the part of .the . West Bengal Government.

The Foreigners Act 1946 is not governed by the provisions of the Extradition Act 1870.

The two are distinct and neither impinges on the other. Even if there is a requisition and a good case for extradition, Government is not bound to accede to the request.

I~ is given an unfettered right to refuse, vide s. 3(1) of the Extradition Act, and has got an absolute discretion to choose the less' icumbrous procedure of. the F:oreigners Act when a foreigner is concerned. As the Government is-given the right to choose, no question of want of good faith can arise merely because: it exercises the" tight of choice which the law confers. ·

Hans Muller of

Nurenburg v: Superintendent, Presidency Jail, Calcutta and others

Hans Muller:of Nurenburg

SperinUndent, Presidency Jail, .C1lcutta and others

ORIGINAL :JurusmcrrnN : Petition No. 22 -of 1955.

Under Article 32 -of the 'Constitution .for a Writ .in the nature of habeas corpus.

Sdhan Chandra Gupta (The Petitioner also . present)· for the. petitioner.

M. C. Setalvad, Attorney-General .of India (B. Sen, and /. N. Shroff, fot P. X. Bose, with him) for the respondents.

1955. February 23. The Judgment of the , Court was delivered by -BosE J.-The .petitioner, Hans .Muller, who is not a citizen of India, and who is said to be a West German subject, was arreste.d by the 'Calcutta Police oh the 18th September, 1954 and was placed under preventive detention. The order was made by the West Bengal Government under section 3 ( 1) of the Preventive Detention Act of -1950 (Act IV of 1950) on the ground that. his detention was "w, ith a . view to making arrangements for his 'explusion from India". ·

' .

The grounds were served on the 22nd of September, ~--\

1954. The second ground runs-

"That you are a foreigner within the meaning of the Foreigners Act, 1946 (Act XXXI of 1946) and that . it has become _ necessary _to make <l!"rangements for your expulsion from India and for this purpose , you are required to be detained under -section 3(1) (b} of the Preventive Detention Act, 1950 until the issue of an appropriate order of expulsion from the Central ). Government".

On the day after his arrest, namely on -the 19th .September, 1954 he wrote to .the Consul"General of West Germany at •.Calcutta saying that he had been arreste_d and asking for .·-an early interview. This Was , granted.. · On the 21st of September 1954; .the petitioner wrote •to the West Bengal' Goverrunelif asking it "to b~-kind enough. to pass .• an.ord~-for our !ID-_ ",{ - mediate repatriation from India" ,

• f

S.C.R. sUPREME COURT .REPORTS 1287

and "to do the necessary arrangement :for our :transmission out of India".

On the 9th of October 1954 the Calcutta Police handed .the petitioner's . passport over to the West German Consul at the Consul's request. . This passport was issued to the petitioner by the West German Government at Nurenburg. in West Germany on the 27th of November

1953. When the passport was handed over to the West German Consul it had on it a number of visas, including an Indan, all of which had on them the col; ldition "while the. passport is valid''.

When the West German . Consul got the passport he made the following entry on it :

"Valid only for the return' voyage to the Federal Republic of Germanyuntil the 8th January 1955".

The pet:itiorier complains that this invalidated all the other visas and as, according to . this fresh entry, the passport ceased to be valid after the 8th of January 1955, he now has no passport. . . . . .

On the same day, the .9th of October 1954, the West German Government wrote to . the West Bengal Government saying that a warrant of arrest was issued against the petitioner in West Germany in connection with a. number of frauds and that legal proceedings . in connection with those warrants. are still , pending. . The Consul also said that he had received information that similar charges had been made against . the petitioner in Lebanon and in Egypt and he concluded-

"The Government 'of the Federal Republic of Germany . will . apply for Muller's extradition through diplomatic channels whilst at the same time submitting the 'supporting documents. As i:hiswill Tetjuite a certain amount of time, I am directed to give you advance 'information of '.this step and . hereby <.request the Government of West Bengal to issue a provisional warrantof arrest which ensures Muller's . .detention up to the date of his extradition to Germany. '

. I .Thi;; COnsulate I Ws ; already . afrariged . ' for., .Muller's 'repatriation oy:,·· ;'tl).e"_:,' Gerfrian boat . :'KANDELFELS' due to arrive' 'in 'Cakutta'~ dn" the 19tlf'' ifilrtiiiL :An

.Hans Muller nf

Nurenburg

.y.

Superintendent, Presidency Jail, Calcutta and otherS;

Bose J.

IQ55

Hans Muller of

Nurttoburg

v. _ Superintendent, Presidnicy Jail, Calcutta arul others

Bose J.

expenses in connection with Muller's repatriation will be borne by the Government of , the Federal Republic of Germany". , . On receipt of this letter the Secretary to the Gov- , ernment of West Bengal recorded the following note : ,

"I suppose there would be 'no objection to our keeping Muller in detention till the 19th instant. We must issue order of his release as soon as his boat is ready to sail". .

The West Bengal Government had no, power' to deport the petitioner.

Only the Central Government could do that, and up till the 20th of October the Central Government had not passed any orders. On that date the petitioner applied to the High , Court of Calcutta .for a writ in the nature of . habeas . , corpus under section 491 of the Criminal Procedure, Code.

Because of that, and, because this matter has been pending in the courts ever since, no orders have yet been issued for his expulsion from India though we are told by the learned Attorney-General that they have been 'made and sighed but are being held in abeyance pending the decision of this petition.

The petitioner contended that 'his detention was invalid for the following, among other, reasons :~

( 1) Because section 3( 1) (b) ' of the Preventive Detention Act, the section under which the order was made,. is u'ltra vires 'the Constitution on three grounds- ( a) that it contravenes articles 21 and '22; "

(b) that it contravenes article 14, and

(c) that it was beyond the legislative compe- . tence of Parliament to. enact such a law;,

(2) Because section 3(1)(1;>), is. not a law of preventive detention within the meaning. of article 22(3) and , therefore. it . contravenes , article., 22 (1) and (2); and

(3) Because,. in any event, the o; dr. was µ; de in bad faith. The High Court decided against the . petitioner on all points and. dismissed the. petition. on 1().o12-1954.

He thereujJ9nJ made the px:esent petition to this, Court <1n the same grounps, presumably under .. article. 32 of the Constitution. It was filed on 10-1-1955.

I..

. ( v

', ' ; ' •

' I ; i: .; I• ' j • i • ! ,.1 • t (.,., We will first consider the vires of section 3(1)(b).

It is iri: these terms : "The Ceiitral Government or the State Government may-'-· .

" t ' ...................................................

(b) if stisfied with respect to any person who is a foreigner within the meaning of the Foreigners Act, 1946 (XXXI of 1946), that with a view to regulating his continued presence in'. Iridia or with a view to making arrangemnts for his expulsion 'from India, it is necessary so to do, 'make an order directing that such person be detained". . · The detention ord.er is. by a State Government and not by the Centre. The portion of the section on which the order is based is the part that gives a State Government power. to make an order of detention against a foreigner, on satisfaction, "with a view to making arrangements for his expulsion from India".

The competence of. the Central Legislature to enact a law dealing with this aspect of preventive detention is derived from Entry 9 of the Union List read with Entry 10. The portion of Entry 9 which concerns us is as follows :

"Preventive detention for reasons connected with .............. Foreign Affairs ............ "

The scope of the expression "Foreign Affairs" is indicated in Entry 10 :

"Foreign Affairs; all matters which bring the Union into relation with any foreign country".

It is well settled that the language of these Entries must be given the widest scope of which their meaning is fairly capable because they set up a machinery of Government and are not mere Acts of a legislature subordinate to the Constitution.

Giving Entry 9 its widest range we find it impossible to hold that legislation that deals with the right of a State to keep foreigners under preventive detention without trial does not bring the Union into relation with a foreign country. Every country claims the right to the allegiance of its subjects wherever they may be arid in return guarantees to them the right of diplomatic

Hans Muller of

Nnrenburg.

To Superintendent, Presidency Jail, Calcutta and others

Bose J.

H/Jns Muller <if

Nurenburg

Superinundenl, Presidency Jail~ Calcutta and 'others

Bi:JseJ•

protection . .when abroad.. It is therefore . the privilege, and the anxiety, of every civilised nation . to keep vigilant watch over is subjects ab.road . and to. ensure for them, as far as that is possible through diplomatic channels, fair play and justice administered ' along lines of what is called, broadly for want of a better term, natural justice. A foreign State has a very direct interest in what ls done to its 'subjects in a for: eign land. Therefore,· legislation that confers jurisdiction upon Governments in this country to deprive foreigners of therr liberty cannot but be a matter that will bring the Union into relation with foreign States,. particularly when there is no public hearing and no trial in the ordinary courts of the land. But in this particular case, the relation is even more direct, for the provision here is for detention with a view to making arrangements for a foreigner's expul'sion from India. A foreign State has a very deep interest in knowing where and how its subjects can be forcibly expelled against their will. The legislative competence of Parliament to deal with this question is, we think, clear; and this covers not only section 3(1)(b) of the Preventive Detention Act but also the Foreigners Act, 1946 (Act XXXI of 1946) in so far as it <leals with the pC>.wers @f expulsion anru llhe right of the Central Government to restrict the movements of foreigners in India and prescribe the place of their residence and the ambit of their movements in the land.

The learned Attorney-General sought to base the legislative competence upon other Entries as well and claimed that Parliament is not confined to Entry 9 in

1 .

List I and Entry 3 in List III (the only Entries that ). touch directly on preventive detention). He claimed; for example, that laws for the preventi"e detentioR of foreigners can .also be based upon Entry 17 in List I which relates to aliens and Entry 19 which relates to expulsion from India•; and also upon the portions of Entries 9 in List I and 3 in List III that deal with the "security of India,'' and the "security of the State" and the "maintrnance of public order", provided always that they comply with articles 21 .. ). and 22 of the Constitution. We express no opiniOR

• I

about this. as we can uphold the portion of the Statute that is impugned here on the narrower ground we have set out above.

The next question is whether the limitations imposed on this power by articles 21 and 22 have been observed.

Article 21 guarantees the protection of personal liberty to citizen and foreigner alike. No person can be deprived of his personal liberty

"except according to procedure established by law'', and article 22 prescribes the minimum that the procedure established by law must provide. There can be no arrest or detention without the person being produced before the nearest magistrate within twenty four hours, excluding the time necessary for the journey, etc., nor can he be detained beyond that period _without the authority of a magistrate. The only exceptions are (1) enemy aliens and (2) "any person who is arrested or detained under any law providing for preventive detention". .

There are further limitations, but they were not invoked except that the learned Attorney-General explained that the unrestricted power given by section 4(1) of the Foreigners Act, 1946 (a pre-constitution measure) to confine and detain foreigners became invalid on the passing of the Constitution because of articles 21 and 22. Therefore, to bring this part of the law into line with the Constitution, section 3(l)(b) of the Preventive Detention Act was enacted. It was more convenient to insert new provisions about the confinement and detention of foreigners in the Preventive Detention Act rather than amend the Foreigners Act because the Preventive Detention Act was a comprehensive Act dealing with preventive detention and was framed with the limitations of articles 21 and 22 in view.

It was urged on behalf of the petitioner that section 3(l)(b) of the Preventive Detention Act is not reasonably related to the purpose of the Act, namely,

j "preventive detention".

I~ was argued that preventive detention can only be for the purpose of prevent-

Hans Muller of Nurenburg

VI Superintendent, Ptesideru, y Jail, Calcutta and otlr4r1

Bose J.

Hans Muller of

Nurenburg

y, Superintendent, Presidency Jail, CalcUtta and others

Bose J.

', J -'"' ' 1 ; r • " l ' ! • ing something and when you seek to make arrangements for a man's expulsiorr from the country you are not preventing anything, or trying to,· but are facilitating the performance of a positive act . by the State, namely the act of expulsion.

We do not agree and will first examine the pos1t10n where an order of expulsion is made before any steps to enforce it are taken. The right to expel is conferred by section 3(2)(c) of the Foreigners Act, 1946 on the Central Government and the right to enforce an order of expulsion and also to prevent any breach of it, and the right to use such force as may be reasonably necessary "for the effective exercise of such power" is conferred by 'section 11 ( 1), also on the Central Government.

There is, therefore, implicit in the right of expulsion a number of ancillary rights, among them, the right to prevent any breach of the orders and the right to use force and to take effective measures to carry out those purposes.

Now the most effective method of preventing a breach of the order and ensuring that it is duly obeyed is by arresting and detaining the person ordered to be expelled until proper arrangements for the explusion can be made. Therefore, the right to make arrangements for an expulsion includes the right to make arrangements for preventing any evasion or breach of the order, and the Preventive Detention Act confers the power to use the_ means of preventive deten . tion as one of the methOds of achieving this end.

How far it is necessary to take this step in a given case is a matter that must be left to the discretion of the Government concerned, but, in any event, when criminal charges for offences said to have been committed in this country and abroad are levelled against a person, an apprehension that he is likely to disappear and evade an order of expulsion cannot be called either unfounded or urrreasonable.

Detention rn such circumstances is rightly termed preventive and falls within the ambit of the Preventive Detention Act and is reasonably related to the purpose of the Act.

The next question is whether any steps can be

.. .._

' . ..

,,.~

, . •' I i

' f' ><

taken under the law in anticipation of an order that is about to be made, or which may be made, by the competent authority on the recommendation of another authority seized with certain powers of. Government and yet not competent to make an order of this kind.

The Foreigners Act confers the right of expulsion on the Central Government.

Therefore, a State Government has no right either to make an order of expulsion or to expel. It was argued that if a State

Government cannot expel or rriake an order of expulsion, then it cannot be' permitted to detain "with a view to making arrangements for the expulsion".

It was contended that the only authority that can make such arrangements, or direct that they should

b~ made, is the Central Government. It was also argued that until an order of expulsion is made by the proper authority, no one can start making arrangements for its due execution; the arrangements contemplated by section 3(1) (b) must follow and not precede the order, especially as they involve curtailment of a man's personal liberty, for the order may never be made and it would be wrong to permit an authority not authorised to decide the question to , detain a man of its own motion till somebody else has time and leisure to consider the matter. That would be inconsistent with the fundamental right to liberty guaranteed by the Constitution to citizen and foreigner alike.

Again, we do not agree. The Preventive Detention Act expressly confers the right to detain "with a view to making arrangements" for the expulsion upon both the State and the Central Government and the "satisfaction" required by section 3 ( 1) (b) can be of either Government.

The right to satisfy itself that , the drastic method of preventive detention is necessary to enable suitable arrangements for expulsion to be made is therefore expressly conferred on the State Government and as a State Government cannot expel, the conferral of the right can only mean that the State" Government is given the power to decide and to

- satisfy itself whether expulsion is desirable or neces- 8- 90 S. C. India/59

. 1955

Hans Muller of Nurenburg v.

Superintendent Presidency Jail, Calcutta and others

Bose J.

Hans Muller of

.Nurenburg

Superintendent Presi, dency ."'fail, Calcutta and others

Bose J.

sary, and if it thinks it is, then to detain until proper arrangements for the expulsion are made, one of them, and an essential one, being reference to the Central Government for final orders. It is evident that the authorities must be vested with wide discretion in the present field where international complications might easily .follow in a given case. U nles. a State Government has authority to act in anticipation of orders from rhe Centre, it might be too late to act at all.

We now turn to the argument that section 3(1) (b) is ultra vires because it offends article 14 of the Constitution. Actually, the attack here is .on section 3 {2)(c) of the Foreigners Act but as section (3)(1)(b) of the Preventive Detention Act is .consequential on that it is also involved. Section 3(1)(b) permits detention of a "foreigner" within the meaning of the Foreigners Act, 1946. The definition of "foreigner" is given in section 2( a) of that Act and is as follows :

" 'foreigner' means a person who-- ( i) is not a natural-born British subject as defined in sub-sections (1) and (2) of section (1) of the British Nationality and Status of Aliens Act, 1914, or

(ii) has not been granted .a certificate of naturalization as a British subject under any law for the .time being in force in India" ..

The rest of the definition is not material. The argument is that tills differentiates between foreigner and foreigner.

It takes two classes of British subjects who are now as much foreigners as anyone else not an Indian citizen, out of the clas. of foreigners for the purposes of preventive detention and for the purposes of expulsion under the Foreigners Act. Tills, it was contended, offen_ds article 14 which provides that

"The State shall not deny to any person equality before the law or the equal protection of the laws within the territory .of India".

This argument is easily :answered by the classification rule which has been repeatedly applied in this Court. The dassification of foreigners into those who are British subjects of the kind set out in the defirii- .tion, and others, so as to make the former not

. f

l ,

foreigners for the purposes of the Foreigners Act and the Preventive Detention Act, :is a reasonable and rational classification and so does not, on the authority of our previous. decisions, offend article 14. There is no individual discrimination and it is easily understandable that reasons of State may make it desirable to classify foreigners into different groups. We repel this argument.

It was then said that at any rate there is differentiation in the same group because the definition discriminates between classes of British subjects inter se.

It was pointed out that the British Nationality and Statuts of Aliens Act, 1914 was repealed in 1948 and re-enacted in another form but as our Act has retained the 1914 definition that is the one we must consider.

We do not intend to examine this contention because, even if it be true that there is the discrimination alleged, namely between one class of British subject and another, that will not give the petitioner a right of challenge on this ground. He is not a British subject and so is not a member of the only class that could claim to be aggrieved on this score. This Court has decided in earlier cases that the only persons who can impugn any given piece of legislation under article 32 are those who are aggrieved thereby.

As the petitioner is not a person aggrieved, so far as this point is concerned, he not being a British subject, he cannot be attack the section on this gruund.

We hold that the impugned portions of section 3(1)(b) of the Preventive Detention Act and section 3(2)(c) of the Foreginers Act, 1946 are intra vires. '

We now turn to a wider question that brings us to the fringe of International law. It arises in this way.

The good faith of the Government of the State of West Bengal in making the order of detention was r challenged on the following, among other, grounds.

It was argued that the real object of Government in continuing the detention was to keep the petitioner in custody so that it would be in a position to hand > , him over to the West German authorities as soon as a suitable German boat arrived. It will be remembered

l9.'Ji5

Hans Muller of Nurenhurg v.

Superintendent Presidency Jail, Calcutta and others

Bose j.

Htins Mul/E'i of Nurenburg . v.

Superintendent . Presidency Jail, Calculta and others

Bose J~

that the West German Government_ wants the . getitioner fot offences which he is alleged to have committed in West Germany and that. the .West German Consul at Calcutta wrote. to the West Bengal Government on 9-10-1954 asking that Government to issue a provisional warrant of arrest against the, petitioner and to keep him in custody until the West,, German Government could initiate extradition· proceedings against him, and added. that the West , Genp.an. Consulate at Calcutta had already arrat; iged ,.f<w. his re patriation on a. Ger!llan boat that was to arrive on the 19th of October 1954. On receipt , of this letter, the Secretary of the West . Bengal Government recorded :a note saying that he supposed there would be no. objection to the West Bengal Government keeping the petitioner in detention . till the .19th. It was said that the connection between the letter, the expected arrival of the boat on the 19th and the Secretary's. proposal to keep the petitioner till that date, was obvious. . · The attack on the good faith of the West Benga.I Government at this p0int was two-fold. First, it was said that whatever the original intention of the West Bengal Government may have been, when the. West German Consul's letter was recei".ed, the object of the detention was no longer for the .purpose. of . mking .arrangements for the petitioner's expulsion bm for keeping him in custpdy till. the West German Government was in a position to commence .extradition prnceedings; that, it was said, was an abuse of the Preventive Detention Act and was not justified by any of its prov1s1.ons ..

The second ground of attack was that, if that was not the object, then, very clearly, the idea was to hand the petitioner over to the Germari authorities on a German boat without the. formality of extradition proceedings and without givirig . the petitioner ·. a chance to defend himself and show that he. could not be extradited. That, . it was said, made the. matter worse than ever. It was denied that the petitione.r had committed any offence in West Germany or anywhere else. He claimed to be a communist and said that the real object of the West German Government

. f

S.C.R.

SUPREME.COURT , REPORTS. 1297

was 'to 'subject him to political persecution the moment they could lay hands on him. The contention was that once an order of extradition is asked . for, a foreigner cannot be handed over to: the Government seeking, his .extradition except under the Extradition Act. .

The learned Attorney-General contended very strongly that this question was academic and should not be onsidered because no order . of expulsion had yet been servd on the petitioner and no orie knows the terms of the order. We do not think it is in view of what 'the )earned Attorney~GeneraL told us, namely that all order of expulsion . has actually been made and , signed bt is. kept in abeyance pending our decision. · · We see no orce in th~ first part of the petitioner's argument. We.' are at. bottom considering the question of the_ West Bengal Government's gOod faith. The order of detention was made before the West German Consul . rote his. letter, so there was no connection between' that letter and the order. After that there is no material to indicate that the West Bengal Government changed its mind and continued the detention for another purpose. The note referred to is the note . of. a Secretarv to Government and embodies his suggestion about what should be done. It cannot be used either . as an order of Government itself or as an indication of its mind.

The second point raises a question of wider import touching the status and rights of foreigners in India, and the question we have to determine is whether there is anylaw in India vesting the executive government with power to expel a foreigner from this land as opposed to extraditing him.

Article 19 of the Constitution confers certain fundamental rights of freedom on the citizens of India, among them, the right "to move freely throughout the territory of India" and "to reside and settle in any part of India", subject only to laws that impose rea~ sonable restrictions on the exercise of those rights in the interests of the general publiC' or for the protection of the interests of any Scheduled Tribe. No cor-

Hans Muller of

Nurenburg

Superihtendenl Presidency Jail, Calcutta and othtrs

•.955

Hans Mulltt •f

Nurenburg

SuptTinletidbttt' Presidency ]aif,.

Calcutta and othtrs

Bose j.

responding rights are given to foreigners. All that is guaranteed to, them is protection to life and liberty i1t accordance with the laws of the land. This is con

ferred by article 21 which is in the following terms :

"No person shall be deprived of his lite or personal liberty except according to procedure established by law".

_ Entries 9, 101 17, 18 and 19 in the Union List confer

wid~. powers on the_ Centre to make laws about, among. , other things, admission into and expulsion from India, about, . extradition arid aliens and about preventive . deention onnectecf with foreign affairs.

Therefore, the right to make laws about the extradition of aliens and about their expulsion from the land is. express, ly , conferred; al.so, it is to, be observed that extradition . and expulsion are contained in separate entries indicating that_ though they may. 9vlap 'in certain. aspects, they are different . and. distinct . subjects. And that brings us to the Foreigners Act which deais, among ' other . t:lllngs, with, expulsi9n, and the

Extradion _Act which. regulates .extradition. ·

The Foreigpers Act confers the power to expel foreighers from India.

It vests the Central Government" With 'absolute""artd unfettered discretion and,- as there is no provision fettering this discretion in the

Constirutioii, an unrestricted right to expel remains.

The law of extradition is quite different. Because of tteaty obli'gati0ns it . confers a right on certain countries (not all) to ask that personS' who 'are alleged to havl: committed certain specified offences in their territories; or who . have already been convicted of those bffences by their courts, be handed over to them in custody for prosecution 'Or punishment. But des pite that -the Government . of -India is not . bound to comply•., with the .. request, , and has. an.- abso.lute and unfettered --discretion to refuse . .-

There are important' differences between the two Acts. ., Irr the first'"place, the Extradition Act "applies to ev&¥ybody;" citizen and :foreigner alike,.-and to every class "•of."foreignet, rhat·.is ''W say, everi• to•·foreigners who ·re n6t' nationak ··of .. the coiµltrY' asking for

extradition.

But, as has, been seen, because , of article 19 no citizen can be expelled (as opposed to extradition) in the absence of a specific law to that effect; and there is none; also, the kind of law touching ex" pulsion (as opposed to extradition) that could be made in the case of a citizen would have to be restricted in scope. Thatis not the case where a foreigner -is .concerned because article . 19 does not appJy. . ut a citizen who has committed certain kinds .. of offences abroad can be extradited if the formalities,. prescribed by the Extradition Act are observed. A foreigner has no such right and he can be expelled withoµt. , any formality beyond the making of . an order by the

Central Government.

But if he is extradited. instead of being expelled, .then. the formalities ·.of the Extraqition Act must be complied with. The importance of the distinction will be realised from what follows; and that applies , to citizen and foreigner alike'. . . .

The Extradition . Act is really a special branch of the law of. Criminal Procedure. It .. deals , with criminals and those accused of certain crimes. ·.The Foreigners Act is not directly concerned with criminals or crime though the fact that a foreigner . has committed offences, or is suspected of that, may be a good ground for regarding him . as undesirable. Therefore,. under the Extradition Act warrants or a summons .must be issued; there must be a magisterial enquiry. and. when there is an arrest it is penal in character; and-,-and this is . the most important distinction of all-when the person to be . extradited leaves .India he does not leave the country a fn; e man.· The police in India hand him• over to the police of the requisitioning

State and. he remains in custody thFOughout.

In the case of expulsion, no idea of• punishmeht is involved, at any rate, ·in theory, and if a man is prepared to leave voluntarily he can ordinarily go as and when he pleases.·· But the• right is not' his. Under the Indian law, 'the niattef -is I left to the unfettered discretioh'-t>f the Union Government an:d -.tha:t-'Government can1 prescribe the route and the port-ior 'place of departure: and' can place ; him •on -a particular, ship 1'0r

plane.: ·(See sectfons. 3(2):(h) :and•6 of'•'thedForeigtu:rs

r955

Hans Muller ef

Nurenburg v.

Superintendent Presidency Jai, Calcutta and others

Bose J.

Hans Muller of

Nutenburg

Superintendtnt Presidency Jail, Calcutta and others

Bose :J.

Act). Whether. the Captain of a foreign ship or .. Plane can be compelled to take a .. passenger he does not want or to follow a particular route is a matter .that does not arise and we express no opinion on it. j3ut assuming that he is willing to do so, the righ.t of the Government to make the order vis-a-vis the man expelled is absolute.

This may not be the law in all countries. ·· Oppenheim, for example, says that in England, until Decem ber 1919, the British Government had

"no power to expel even. the most dangerous .alien without the recommendation of a court, or without an Act of Parliament making provision for' , such expulsion, except during war on an . occasion ·of imminent .. national . danger : or great .. emergency". (Oppenheim's International Law, Vol. I, 7th edition, page 631). ·"' But that is immaterial, for the law m"'each country is different and we are concerned . with the law as it obtains in our land. Here the matter of. expulsion has to be viewed . from three points of view : ( 1) does the Constitution permit the making of such a law? (2) does it place any limits on such laws? and (3) is there in fact any law on this. topic. in India and if .so, what does it enact? We have already examined the lawmaking power in this behalf and its scope, and as to the third question the law on this matter in India is embodied in the Foreigners Act which . gives an unfettered right to the Union Government to .expel.

But there is this distinction.

If the order is one of expulsion, as opposed to extradition;· 'then the person expelled leaves India a free man. It is true he may• be apprehended the moment he ·leaves; by some other power and consequently, in some . cases, this would be small consolation to him, but in most cases the distinction is substantial, for the right of a . foreign power to arrest except in its .own territory nd on -its own . boats is not unlimited. But however thii, t may be, so:far as India is concerned; there must be .. an order of release if he is in preventive. custody and though he may Ii<; conducted to the frontier .. under detention .he . must be permitted to.· leave a free man

- f

...

:Land cannot be handed over under arrest.

In a case of extradition, he does not leave a free man. He remams under arrest throughout and 1s merely handed over by one set of police to the next.

But m that event, the formalities of the Extradition Act must be complied with. There must be a magisterial enqmry with a regular hearing and the person sought to be extradited must be afforded the right to submit a written statement to . the Central Government and to ask, if he so chooses, for political asyium; also he has the right to defend himself and the right to consult, and to be defended by, a legal practitioner of his choice. (Article 22(1) ). Of course, he can also make a representation against an order of expulsion and ask for political asylum apart from any Act but those are not matters of right as under the Extradition Act.

Our conclusion is that the Foreigners Act is not governed by the prov1s10ns of the Extradition Act.

The two are distinct and neither impinges . on the other. Even if there is a requisition and a good case for extradition, Government 1s riot bound to accede to the request. It 1s given an unfettered right to refuse. Section 3(1) of the Extradition Act says..,-

"the Ceritral Government may, if it thinks fit".

Therefore, if it chooses not to comply with the request, the person against whom the request is made cannot insist that it should. The right 1s not his; and the fact that a request has been made does not fetter the discretion of Government to choose the less cumbrous procedure of the Foreigners Act when a foreigner is concerned, provided always, that in that event the person concerned leaves India a free man.

If no choice had been left to the Government, the position would have been different but as Government is given the right to choose, no question of want of good faith can arise merely because it exercises the right of choice which the law confers. This line of attack on the good faith of Government falls to. the ground.

The remaining grounds about want of good faith

Hans Muller of

Nurenburg

Vi Superintendent, Presidency Jail, Calcutta and others

Bose J.

•955

Hans MUlltr of

Nurenburg ,,.

Suptrinten<knt) Presidency Jail, .

Calcutta. and otherS'

Bose J~

February 28

that were raised in the petition were not seriously piessed and as. they are of no substance we need not discuss them. . The petition fails and is dismissed.

Petition dismissed.

l\MRIK SINGH v.

THE STATE OF PEPSU.

[S. K. 'DAS, BHAGWATI arid VENKATAAAMA AYYAJ!. JJ.)

" ' Criminal Procedure Code (Aci Vof 1898), s.-197(1)-Charge of ,.Jc criminal isappropriation against a public servant-Sanction for prosecution under s. 197(1) of the Code of Criminal .Procedure- W hen necessary-Whether every offence committed by a public servant or every act done. b~ -him while .performing .official duties requires sanction for prpsecution.

It -is not every offence •committed by a public servant that retjui-res sanction for prpsecu\i.t; n. under s . .197(1} of the Code of Criminal Proct; dure . nor. eveµ every act done by him while he is actually engaged in µie performanCe of his official duties; but if the act compla.ined. of : is direCtly concerned \vith his official duties so that, if queStionea, it c'ould b'e claimed to 'have been done by virtue ofthe office, then. san<; tion. would .be necessanr; and that would be so, irrespective of whether it \Vas, iri fact, a proper discharge of his duties, because that ,.Would re:illy be a ·matter Of defence on the merits, which would have to be investiga'.ted at the trial, and could not arise at the stage -of the grant ofsanction, which must precede the institution of the prosecution.

Whether sanction is necessary to Proseeute a .public servant on a charge of criminal .misappropriation, will depend qn whether the ..>- acts complained of hinge on }:iis duties as a public servant.

If they do, then sanction i_s requiste. But if they are uncoqnected with such duties, then nb. sanctin "is necessary._.. ' ·

Hori Ram Singh Y •. Emperor ([1939] F.C.R. 159), H. H. B, Gill

v. The King ([1948] L.R. 75 LA. 41), Albert. West Meads v. The King '([1948] 'L.R. 75 I.A. 185), Phaniniira Chandra v. The King (['I949J L.R::76 LA>lO); 'R. W:· Math'ams v. "State°<jf WestB.engal ([.1955]. .l S.C:R. 2'16~:artd Shreekttntiah Ramayya Munipalil v. The State of Bombay ([1955-].:J .s.C.R:- 117.7),. referr<; d to.'

CRIMINAL

APPELLATE JuR1smcTmN: Criri:iirial Appeal• No:48 of "195'11."'"' ... · "·· ··•""'"· ...

HANS MULLER OF NURENBURG

MuKHERJEA C.J.

S. R. DAs

VIVIAN BosE

BHAGWATI

Constitution of India

Arts. 14, 21 and 22

s. 3(1)(b)

s. 3(2)(c)

Constitution-Extradition Act 1870

Foreigners Act, 1946

West Bengal Government

Preventive Detention Act 1950

Foreigners Act 1946

India

Central Government

s. 3(1)(b)

Arts. 14, 21 and 22

Parliament

Foreigners Act

Seventh Schedule

s. 3(l)(b)

Arts. 21 and 22

Section 3(1)(b)

s. 4(1)

Foreigners Act

section 3(1)(b)

s. 3(2)

Foreigners Act

Art. 14

Foreigners Act 1946

s. 3(1)(b)

Foreigners Act 1946

Extradition Act 1870

s. 3(1)

Extradition Act

Hans Muller

Article 32

Sdhan Chandra Gupta

M. C. Setalvad

B. Sen

N. Shroff

P. X. Bose

Hans .Muller

Calcutta Police

section 3

section 3(1)

Preventive Detention Act, 1950

Central ). Government

it has become  necessary to make <l!"rangements for your expulsion from India and for this purpose , you are required to be detained under -section 3(1) (b} of the Preventive Detention Act, 1950 until the issue of an appropriate order of expulsion from the Central ).

19th .September, 1954

On the day after his arrest, namely on -the 19th .September, 1954 he wrote to .the Consul"General of West Germany at •.Calcutta saying that he had been arrested and asking for .·-an early interview.

9th of October 1954

Nurenburg

West Germany

27th of November

1953

Federal Republic of Germanyuntil

8th of January 1955

of October 1954

West German Government

Lebanon

Egypt

Muller

Government of West Bengal

Germany

Bose

Hans Muller

20th of October

High , Court of Calcutta

section 491

section 3( 1)

articles 21

article 14

section 3(1)(1;>)

article 22(3)

section 3(1)(b)

Ceiitral Government

Foreigners Act, 1946

section 3(1)(b)

articles 21

articles 21 and 22

Article 21

article 22

section 4(1)

Foreigners Act, 1946

articles 21 and 22

section 3(l)(b)

Foreigners Act

articles 21 and 22

section 3(l)(b)

section 3(2)(c)

Foreigners Act, 1946

section 11

Foreigners Act

section 3(1)

section 3

section 3(1)

article 14

section 3

Foreigners Act

Section 3(1)(b)

Foreigners Act, 1946

section 2( a)

Foreigners Act

article 14

Foreigners Act

article 14

article 32

section 3(1)(b)

section 3(2)(c)

Foreginers Act, 1946

Government of the State of West Bengal

West German authorities

Calcutta

19th of October 1954

West . Bengal Government

West Benga.I Government

Germari authorities

Extradition Act

Article 19

article 21

Government . of -India is

Extradition Act

article 19

Extradition Act

Foreigners Act

Extradition Act

Hans Muller

Superintendent Presidency Jai, Calcutta

Oppenheim

England

Decem ber 1919

British Government

India is embodied in the Foreigners Act

Extradition Act

Article 22(1)

Extradition Act

Section 3(1)

Extradition Act

S. K. 'DAS

VENKATAAAMA AYYAJ

Criminal Procedure Code

s. 197(1)

Hori Ram Singh

sanctin "is necessary... ' ·

Hori Ram Singh Y •. Emperor ([1939] F.C.R. 159), H. H. B, Gill

v. The King ([1948] L.R. 75 LA.

[1939] F.C.R. 159

L.R. 75 I.A. 185