STATE OF NAGALAND

RA TAN SINGH, ETC.

March 9, 1966

[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, HIDAYATULLAH,

J. C. SHAH AND S. M. SIKRI, JJ.j

Scheduled Districts Act, 1874-Rule• thereunder-If valid and in fore~! Act bad for excessive delegation-If Rulu violate Arts. 14 and 21 of Co11stltution-Applicabi/ity of Criminal Procedure Code to backward tracu--Constitution of India, 1950.

The respondents were sought to be tried for oft'ooces under the Indian Ponal Code, before the Additional Dqluty Commissioner, Kohnna, "hen objection was taken that the trial should be before the Court of Sessiom

; ifter commitment, as tho offences were triable exclusively by the Court of Session under the Code of Criminal Procedure. The Additional Deputy

Commissioner overruled tho objection on the ground that there were no Courts of s-ion in the Naga Hills District and tho Criminal Procedure Code was also not in force.

He ruled that committal proceedings and the trial before a session coun was therefore not possible and the pr<><"- dure laid down in the Rules for the Administration of Justice and Police

ii\ the Naga Hills District, 1937, would be followed.

Thereupon the respondents filed writ petitions to quash the proceedings commenced under the Rulo:; of 1937. Tho High Court issued a writ directing the State not to proceed with the trial under the Rules of 1937.

The area, where the trial was taking place was one of the backward tracts and it was for a century and more specially administered.

Tho successive Criminal Procedure Codos, which ordinarily would have governed the trial of offence•, were always withdrawn from this area and special rul"" for administration of criminal justice were pomulgated instead.

Dy tho Government of India Act, 1870, the Governor-General and other authorities were conferred the power to make or propose laws, and the Governor-General was allowed to legislate separarelv for the backward tracts.

M difficulties arose in determining whµt laws were in force and io which area of backward tracts, the Scheduled Districts Act, 1874 was passed.

The p06ition at the inauguation of the Govornmcot of India. 1935 was that the Go\'emor-General in Council legislated for these backward areas and the Governor-General could direct that any Act of the Indian Legislatures should not apply at all or should apply with such exceptions and modifications as he might think tit. The 1935 Act provided for the ascertainment of the backward tracJs and for =king of laws in those areas and in 1936 an Order in Council was made speci fying the backward tracts. The Scheduled District Act was repealed by the Adaptation of Laws Order, 1937. The Constitution of India, 1950,

by Art. 244 made a special provision for the scheduled and tribal areu. 1ltt> State of Nagaland was formed by the State of Nagaland Act, 1962

comprising of N"? Hills-Tuensang Area and consisting of three districta. The admin!Slration of tho State of Nagaland was to be in accordance with the provisions of the State of Nagaland Act, which amon~ other thingt provided for the continuance of existing law• and their adaptation.

The Government and administration of these areas was often not carried on directly under laws made by the Governor-General either by himself

NAGALAND v. RATAN SINGH 831

or in his Council but through rules which were framed from tµne to t!m• by other agencies.

In 193 7, the Governor of AMam prescribed reed .

Rules under the powers vested in him by s. 6 of the S9heduled D1•ti:icts Act. These Rules of 1937 began by stating that they cancelled "all pre>1ous orders on the subject" but were on the pattern of earlier rules which laid down that in criminal trials the spirit of the Criminal Procedure Code was to be followed because the Code itself was not in force.

In appeal to this Court, the main question that arose were whether the Rules of 1937 were validly enacted and they continued to be in force, _whether the Scheduled Districts Act was bad because of excessive delegation, ao.d whether the Rules of 1937 were rendered void by reasou of Arts. 14 and 21 of the Constitution.

HELD: The Rules of 1937 were validly enacted and continued to be in force and governed the trial of the respondents. The Oxle of Criminal Procedure admittedly did not apply to that area and the Additional Deputy Commissioner was therefore right in holding the trial under the Rule•

of 1937. [854 E-F]

The Rules of 1937 did survive the repeal of the Scheduled Districts Act, 1874 by virtue of the saving ci_ause in the Adaptation of Laws Order which repealed the Act.

The sav.ng clause preserved all n.ouficat10111 and the Rules of 1937 were enacted by a notification. After the passing "of the Government of India Act, 1935, the Rules of 1937 wore succe.- sively preserved by ss. 292 anc! 293 of the Government of India Act, 1935, s. 18 of the Indian Independence Act, 1947 and Art. 372 of the Constitution. [847 G-848 A]

There WM no excessive delegation under the Scheduled Districts Act.

The Legislature clearly indicated the policy and tbo manner of off.., tuating tbat policy. The Act conferred on the local Governments power to appoint officers for administration of civil and criminal justice within the Scheduled Districts and empowered the local Government to regulate the procedure of the oll'icers so appointed and to confe.r on tllem authority and jun.- diction powers and duties incidental to the administration of civil and criminal justice.

These pro, isions afforded sufficient guide to the local Government that the administration of Civil and Criminal justice was to be done under their control by the officers apoointed by them anc! the procedure which they were to follow had to be laid doWt!. Besides, there was sufficient guidance in the three sub-sections of s. 6 read as a whole with the preamble, and the Chief Commi.,; ioner's Rules made in 1872 and republished 'n 1874 by Governor-General in Council wore alo<> available as a further guide as the last were continued in force by s. 7. [849 G-850 DJ

By the Scheduled Districts Act the Governor-General in Council conferred on the local Government an equal or concurrent power an& thi• was clearly indicated by the word "as tbe case may be" in s. 7 of the Act. Those word< did not. show that the local Government could only amend its own Rule'l.

They showed that whoever made the rules the authority of the Act made them binding. [851 A-BJ

Article 21 of the Constitution did not render the Rules of 1937 ineffective. In the backward tracts it was considered necessary that discretion should have greater play than technical rules and the provision that the spirit of the Code should apply was a law conceived in the best iRtercsto of the people.

The di!cretion of the Presiding Officer was net subjected ro rigid control because of tbe unsatisfactory state of defences which would be offered an<) which might fail if they did not comply with

832 SUPREME COUll.T REPORTS

[1966] 3 S.C.R.

some technical rule.

The removal of technicalities, led to the advancoment of the cause of justice in these backward tracts.

On the ocher hand the imposition of the Code of Criminal Procedure would have retarded justice as iiideed the Governors-General, the Governors and the

heads of local Governmoot bad always thought. (852 B-0]

It was not discriminatory to administer different laws in different areas.

These backward tracts were not found suitable for the applic.1tion of the Criminal Procedure Code in all its ,; gour and technicality and to say that they were to be governed, not by the technical rules of the Code, but by the substance of such ru1 .. was not to discriminate this area against the rest of India. (852 E-G]

The law had not attempted to control discretion by Rules in Ibis area but had rightly left discretion free so that the rule might not hamper the administration of justice.

There was no vested right in procedure; therefore, the respondents could not claim to be tried undtr the CrimiMI Procedure Code tn this area where the Code was excluded. [853 Gl

No discrimination can be spelled out from the differences in the rule• aPJ>licable to different areas in the backward tracts.

The object was to bnng these territories under the Code of Criminal Procedure applicable in the rest of India, by stages.

Article 371 of the Constitution it>elf coatcmplatcs a diffecent treatment of these tracts and the differences are justified by the vast differences between the needs of social conditions .In Nagaland and the \1lrious stages of development of different parts of this area. [854 DJ

[Uniform set of Rules for the whole area suggested.]

CRIMINAL APPFLLATE JURISDICTIO~ : Criminal Appeals Nos.

E 198 of 1965 and 29-32 of 1966.

Appeals from the judgment and order dated August 26. 1965 of the Assam and Nagaland High Court in Civil Rules Nos. 200, 235, 234, 233 and 232 of 1965.

C. K. Daphtary, Attorney-General, D. M. Sen, Advocate F General for the State of Noga/and, P. K. Goswami, Anil Barthukar, B. Dutta and Naunit Lal, for the appellant (in all the appeals.)

A. K. Sen, S. S. Ray, I!. K. Puri and H. L. Arora, for the respondents (in all the appeals).

Nimz De, Additional Solicitor-General and Naunit Lal, for the intervener.

The Judgment of the Court was delivered by

Hidayatullah, J. These are appeals by the State of Nagaland against the judgment and order of the High Court of Assam and Nagaland, August 26, 1965, by which the High Court, allowing certain writ petitions filed by the respondents, issued a writ of mandamus directing the Adliitional Deputy Commissioner, Kohima and the State of Nagaland, not to proceed with the trial of the

NAGALANI> V, RATAN SINGH (Hidayatullah, J.) 833

A respondents. The High Court has certified the case as fit for appeal

•to this court. The facts are these :

The respondents are members of the 7th Battalion of the Central Reserve Police (shortly called in this judgment the C.R.P.) who, under the command of the 8th Mountain Division Infantry Brigade, were engaged in operations in the State of Nagaland.

On receipt of information that on or about August 3, 1964, seven hostile Nagas, 'Who were captured and kept prisoners with the C.R.P. at Pfutser Camp, were murdered and their dead bodies secretly disposed of, the police, after investigating the report, .arrested 44 persons and charged them with offences under ss.

302/109/34 and 201, Indian Penal Code. Some other members of the C.R.P. were charged at the same time under s. 436, Indian Penal Code for setting fire to some houses in certain villages. The trial was about to take place before the Additional Deputy Commissioner, Kohima, when an objection was taken that the trial should be before the Court of Session after commitment, as the offences were triable by the Court of Session exclusively, under the Code of Criminal Procedure. The Additional Deputy Commissioner overruled the objection pointing out that there were no Courts of Session in the Naga Hills District and the Criminal Procedure Code was also not in force.

He ruled that committal proceedings and trial before a Sessions Court were, therefore, not possible and the procedure laid down in the Rules for the Administration of Justice and Police in the Naga Hills District, 1937, would be followed.

For brevity we shall refer to these Rules as the Rules of 1937.

The respondents filed five petitions under Art. 226 of the Constitution for writs or orders to quash the proceedings under the Rules of 1937 and other reliefs. By the order impugned here a Divisional Bench consisting of C.

Sanjeeva Rao Nayudu and S. K. Dutta JJ., quashed the proceedings and issued a writ of mandamus directing the Additional Deputy Commissioner and the State of Nagaland not to proceed under the Rules of 1937 with the trial of the accused before him. The learned Judges gave separate, but concurring judgments. Mr. Justice Dutta in a brief judgment reached the conclusion that the Rules of 1937 made by the Governor of Assam and the earlier rules made by the Lt. Go- vernor on November 29, 1906 were not validly made. In his opinion there already existed certain other Rules made by the Governor-General in Council in 1874 and the local Government was not competent to make rules while those Rules existed. In regard to the Rules of 1874 the learned Judge held that they "had H : become infructuous" for want of suitable adaptations after the political changes since 1874. He did not consider any other ground , of alleged invalidity of these Rules and expressly refrained from giving any opinion. Mr. Justice C.

Sanjeeva Rao Nayudu

834 SUPllEMll COUllT llEPOllTS

[1966) 3 S.C.R.

dealt with the problem exhaustively and viewed it from many angles.

He gave several reasons for holding that the trial could not take place under the Rules of 1937. We have not found it easy to summarize his reasons effectively but, briefly stated, they were : that the Rules of 1937 were void ab initio because the Scheduled Districts Act, 1874 under which the Governor purported to make them did not give him any authority to make them; that if the Act gave such authority, it was itself ultra 1ires the statutes of British Parliament and involved excessive delegation; that on the repeal of Scheduled Districts Act in 1937, all ruled made under it lapsed; that the Rules of 1937 were vague, uncertain and elusive and were not law as contemplated by Art. 21 ; that they were discriminatory for various reasons ; that they could not apply to Indian citizens in Nagaland and that, in any event, the Additional District Magistrate was not acting in accordance with those Rules such as they were. We need not at this stage attempt to enlarge upon the various themes because the arguments on behalf of the respondents have presented a selection of the reasons which were given by Mr. Justice Nayudu and they will appear in appropriate places in our Judgment.

We are concerned with a new State formed as late as 1962 but the territory of this State has had a very long and chequered history.

The area. where the trial is taking place is one of the backward tracts and it has, for a century and more, been specially administered. Jn that area the ordinary laws (particularly the two main Codes) in force in the rest of India, have not been applied. The successive Criminal Procedure Codes, which ordinarily would have governed the trial of offences, were always withdrawn from this area and special rules for administration of criminal justice were promulgated instead. Whether such rules (particularly the Rules of

1937) were validly enacted, whether they continue to be in force and whether they are rendered void by reason of Arts. 14 and 21 of the Constitution arc the main problems requiring consideration. Before we consider these questions the history of law-making in these areas may first be told generally and then in relation to the Rules for the Administration of Justice promulgated in 1937 and at other times.

Even prior to the taking over of the Government of the territories formerly administered by the East India Company the making of laws wa-; entrusted to the Governor-General in Council under 3 & 4 William IV, Ch. 85 and 16 & 17 Viet. Ch. 95. They allowed laws to be made directly for the areas which were under the Government of East Jndia Company. After the Indian Councils Act of 1861 (24 & 25 Viet. Ch. 67) was passed the legality of the laws which had been made by the Governor-General either in Council or on his own was in question. Section 22 of the lndian Councils Act made new provision by_which the Governor-General in Council

NAGALAND v. RATAN SINGH (Hidayatullah, J.) 835

was authorised to make laws and regulations for India and to repeal, amend or alter any law or regiilation whatever in force in India. The Act also made provision validating all earlier laws by enacting that no rule, law or regulation made before the passing of that Act by the Governor-General or certain named executive authorities would be deemed invalid by reason of not having been made in conformity with the provisions of the Charter Acts. The power to make laws was taken away from the executive authorities.

The power, which was taken away from the Governor and other authorities to make or propose laws was again conferred on the Governor-General and other authorities by the Government of India Act, 1870 (33 & 34 Viet. Ch. 3) and the Governor-General was allowed to legislate separately for the backward tracts. For this purpose the Governor in Council, the Lt. Governor or the Chief Commissioner, as the case may be, could submit to the Governor-General draft regulations for his consideration and after their approval by the Governor-General in his Council such regulations became law for these backward areas.

This state of affairs existed right down to the Government of India Act, 1915. As difficulties arose in determining what laws were in force and in which areas of the backward tracts, the Scheduled Districts Act, 1874 was passed. This Act wi!l be considered closely later and for the present we content ourselves with a few points of importance to the present narrative. The preamble of the Act clearly set out that the object, inter a/ia, was to ascertain the enactments in force in any territory and the boundaries of such territory. The Act, therefore, specified "scheduled tracts" and the local Governments were given the powers to extend by public notification, any enactment in force in British India. When the Government of India Act, 1915 (5 & 6 Geo V, Ch. 61) was enacted, while repealing by the Fourth Schedule the Government of India Act, 1870, section 71 was included in the 1915 Act which, in effect, provided the same procedure for making and applying laws as had been provided by the Act of 1870. The local Governments could propose draft regulations for peace and good Government of any part within their jurisdiction and the Governor-General after taking the draft regulations and the reasons into consideration could approve in his Council and assent to the Regulations. After his assent and on their publication in the official Gazette of India and in the local official Gazette, if any, they had the same force of law and were subject to the same disallowance as if they were the Act of the Governor-General in his Legislative Council. When the Government of India Act, 1919 (9 & JO Geo. V, Ch. 101) was passed s. 52-A. was inserted which read as follows :-

"52-A. Constitution of new provinces, etc., and provision as to backward tracts.

:836

SUPREME COURT REPORTS

(I) •

(2) The Governor-General in Council may declare any territory in British India to be a "backward tract", anc.I may, by notification, with such sanction as foresaid'. direct that this Act shall apply to that terntory subject to such exceptions and modifications as may be prescribed in the notification.

Where the Governor-General in Council has, by notification, directed as aforesaid, he may, by the same or subsequent notification, direct that any Act of the Indian legislature shall not apply to the territory in question or any part thereof, or shall apply to the territory or any part thereof subject to such exceptions or modifications as the Governor- General thinks fit, or may authorise the Governor in Council to give similar directions as respects any Act of the local legislaturee."

Thus at the inauguration of the Government of India Act, 1935 the position was that the Governor-General in Council or the Governor etc. with the approval of the Governor-General in Council legislatec.I for these backward tracts anc.I the Governor- General could direct that any Act of the Indian legislature should not apply at all or should apply with such exceptions and modifications as the Governor-General might think fit.

When the Government of India Act, 1935 replaced the Government of India Act, an Order in Council was made in 1936 specifying the backward tracts and the 1935 Act included ss. 91 and 92 for the ascertainment of the backward tracts and for the making of laws in those areas.

Section 92, which dealt with the administration of the excluded .areas and partially excluded areas, provided :

"92. Administration of excluded areas and partially excluded areas :

(1) The executive authority of a Province extends to excluded and partially excluded areas therein, but, notwithstanding anything in Act, no Act of the Federal Legislature or of the Provincial Legislature, shall apply to an excluded area or a partially excluded area, unless the Governor by public notification so directs, and the Governor in giving such a direction with respect to any Act may direct that the Act shall in its application to the area, or to any specified part thereof, have effect subject to such exceptions or modifications as he thinks fit.

(2) The Governor may make regulations for the peace and good Government of any area in a Proc - D

NAGALAND v. RATAN SINGH (Hidayatullah, J.) 837

vince which is for the time being an excluded area, or a partially excluded area, and any regulations so made may repeal or amend any Act of the Federal Legislature or of the Prov!ncil Legislatur~, or ny existing Indian Law, which 1s for the lime bemg applicable to the area in question.

Regulations made under this sub-section shall be submitted forthwith to the Governor-General and until assented to by him in his discretion shall have no effect, and the provisions of this Part of this Act with respect to the power of His Majesty to disallow Acts shall apply in relation to any such regulations assented to by the Governor-General as they apply in relation to Acts of a Provincial Legislature assented to by him.

(3) The Governor shall, as respects any area in a Province which is for the time being an excluded area, exercise his functions in his discretion."

After this the Scheduled Districts Act became obsolete and was repealed by the Adaptation of Laws Order, 1937.

Next came the inauguration of the Constitution. Article 244 made a special provision for the scheduled and tribal areas and the second clause of that article provided that the provisions of the Sixth Schedule were to apply to the administration of the tribal areas in the State of Assam. Originally in the Sixth Schedule to the Constitution the Naga Hills District was included as an autonomous district and was shown in Part A of Paragraph 20 and the Naga Tribal Area was shown in Part B. It is not necessary to refer in detail to the Sixth Schedule which provided for separate modes of administration of the Part A and Part B territories. The name Naga Tribal Area was changed to Tuensang Frontier Division by the North East Frontier Areas (Administration) Regulation, 1954 (No. I of 1954) which came into force on January 19, 1954. By the same Regulation the North East Frontier Tract was stated to include Ba!ipara Frontier Tract, the Tirap Frontier Tract, the Abor Hills District, the Misimi Hills District and with the Nitga Tribal Area was named collectively as the North East Frontier Agency. Then by the Naga Hills-Tuensang Area (Administration) Act, 1957 (42 of 1957), the Naga Hills District was omitted from Part A and the whole of the Naga Hills-Tuensang area was shown in Part B with effect from December I, 1957. The Tuensang area was the former N aga Tribal Area and the other two areas were the autonomous districts of Kohima and Mokokchung. T)le

State of Nagaland was formed by the State of Nagaland Act, 1962 (27of1962). That Act repealed and replaced the Nagaland (Transitional Provisions) Regulation, 1961 (Regulation 2 of 1961). The

(1966] 3 S.C.R.

territory of the new State comprises the Naga Hills-Tuensang Area and consists of three districts which are the Kohima District, the Mokokchung District and the Tuensang District. The State of Nagaland Act also deleted all references to the Naga Hills-Tuensang Area from the Sixth Schedule. The administration of the State of Nagaland was to be in accordance with the provisions of State of Nagaland Act. Among other things it provided for a common High Court for the State of Assam and the State of Nagaland, By section 26 it laid down :-

"26. Continuance of existing laws and their adaptation.-

(I) All laws in force, immediately before the appointed day, in the Naga Hills-Tuensang Area shall continue to be in force in the State of Nagaland until altered, repealed or amended by a competent Legislature or other competent authority.

(2) For the purpose of facilitating the application in relation to the State of Nagaland of any law made before the appointed day, the appropriate Government may, within two years from that day, by order make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority.

Exp/anation.-In this seciion the expression "appropriate Government" means, as respects any law relating to a matter enunciated in the Union List in the Seventh Schedule to the Constitution.

The Central Government; and as respects any other law, the Government of Nagaland."

Section 27 conferred power on courts, tribunals and authorities to nstrue, in the absence of adaptations, the laws in such manner, without affecting the substance, as may be necessary.

By s. 28 all courts tribunals and authorities discharging !av.fol functions were continued as before unless their continuance was inconsistent with the State of Nagaland Act. So much will suffice to describe the ground-work of law-making nder the. authority of ritish

Parliament the Governor-General m Council and the Parliament and Legisl; tures under the present Constitution. We shall now see the real crux of the problem because the Government and administration of these areas was often not carried on directly under laws made by the Governor-General either by himself or

NAGALAND v. llATAN SINGH (Hidayatu!Jah, J.) 839

A in his Council but through rules which were framed from time to time, by other agencies. We will now describe how these rules, some of which are in controversy in the present appeal, were made.

On September 24, 1869 the Governor-General enacted the Garo Hills Act, 1869 (Act 22 of 1869). By this Act the Garo Hills were removed from the jurisdiction of the Civil, Criminal and Revenue courts and offices established under the General Regulations and Acts and the Act provided for the administration of justice and collection of revenue. The Act repealed an earlier Act of 1835 (No. 6 of 1835) and the Bengal Regulation 10 of 1822, but in this case we are not required to go behind 1869. We are referring to this Act because it was extended also to the Naga Hills. Section 4 of the Act on extension provided that the territory known as the Naga Hills was removed from the jurisdiction of courts of Civil and Criminal Judicature as well as from the law prescribed for the said courts and no Act passed by the Council of the Governor-General for making laws and regulations was deemed to extend to any part of the said territory unless the same was specially named in it. By s. 5 the administration of Civil and Criminal justice was vested in such officers as the Lt. Governor might, for the purpose of tribunals of first instance or of reference and appeal, from time to time, appoint. The officers so appointed . were, in the matter of administration, subject to the direction and control of the Lt. Governor and were to be guided by such instructions as the Lt. Governor might, from time to time, issue.

The Lt. Governor could extend by notification any law or any portion of a law in force in the other territories subject to his Government or to be enacted by the Council of the Governor- General or of the Lt. Governor for making laws and regulations and while making such extensions cold direct by whom the powers and duties incident to the provisions so extended should be exercised or performed and might make any order which was. deemed requisite for carrying such provisions into operation. The Act also gave power by s. 9 to the Lt. Governor to extend mutatis mutandis all or any of the provisions contained in the other sections of the Act to the Jaintia Hills, the Naga Hills and to such portions of the Khasi Hills as for the time being formed parts of British India.

The Act was also extended to Khasi and Jaintia Hills and the authority of the Governor-General to enact the Act and of the Lt .

Governor to extend it was challenged. The decision of the Judicial Committee is reported in Queen v. Burah (L. R. 5 I.A. 178) which held that both the powers existed. On October 14, 1871 acting under s. 9 of the Act of 1869 the Lt. Governor extended the whole of the Act to the Naga Hills District and vested the administration of Civil and Criminal jurisdiction in the Commissioner of Assam subject to his own direction and control. The Commissioner

SUPREME COURT RBPORTS

(1966) 3 S.C.R.

was to exercise the powers of the High Court in Civil and Criminal cases triable in the Courts of the said districts but no sentence of death was to be carried out without the sanction of the Lt. Governor and it was competent to the Lt. Governor to call for the record of any criminal or civil case and to pass such orders thereon as he saw fit. The notification also ordered that cases mit then triable in the ordinary British Courts would not be triable therein and even in those cases which were triable in those courts, the officers were to guide themselves by the spirit of the laws prevailing in British India and in force in the districts. In continuation of this notification, the Lt. Governor made under s. 5 of the Act of 1869, in application to the Naga Hills (which he renamed the Naga Hills Agency) Rules for the Administration of Justice and Police in the Naga Hills Agency. These rules were first published on August 7,

1872 and may be called, for brevity, the Rules of 1872.

The Rules of 1872, 39 in number, dealt with various topic$ but we shall set down the purport of such rules only as concern us.

Part I was general and consisted of two rules.

By Rule 1, the administration of the Naga Hills Agency was vested in the Commissioner of Assam, the Political Agent and his assistants, the Mouzadars, Gaonburahs, Peumahs (Naga Chiefs) and Houshas (Kookie Chiefs) or headmen of Khels, or such other classes of officers as the Lt. Governor deemed fit.

Part II provided for police and consisted of Rules 3 to 15. We are not concerned with it.

Criminal justice was provided for in Part Ill (Rules 16 to 24) and Civil Justice in Part IV (Rules 25 to 30).

We arc only concerned with the former.

Criminal justice was to be ordinarily administered by the Political Agent, his assistants and by the Mouzadars etc. The Political Agent could pass a sentence of death or imprisonment for a term unlimited or of fine up to any amount but not so as to exceed the value of the offender's property. No sentence of death was to be carried into effect without the concurrence of the Commissioner and the sanction of the Lt. Governor. Similarly, no sentence above 7 years' imprisonment could be carried into effect without the approval of the Commissioner. The Commissioner could enhance any sentence passed by his subordinates. The Assistant to the Political Agent was to exercise the powers of a Magistrate, First Class as laid down in the Criminal Procedure Code of 1872.

The Mouzadars etc. were to try petty offences and could impose a fine up to Rs. 50.

There were elaborate rules for trial by them and appeals lay against their decisii:i:s to the Political Agn.t or his Assistant. Appeals lay to the Pohllcal Agent from the dec1S1ons of his Assistant. No appeal lay as of right from the sentence of the Political Agent involving less than three years' imprisonm.ent but the Commissioner could call for the record of the case to sat1Sfy himself. Sentences above that period were appealable to the Com-

A •

D ...

H ....

NAGALAND v. llATAN SINGH (Hidayatullah, J.) 84 l

A missioner. The Lt. Governor was empowered to review the proceedings of all subordinate officers. Rule 23 bore upo~ .the manner of the trial. It provided that the procedure of the Political Agent and his Assistant was to be in the spirit of the Code of Criminal Procedure as far as it was applicable to the circumstances of the

District and consistent with the Rules. The main exceptions. were:

(a) Verbal notices fixing a date to appear were sufficient when the police was employed to convey them or the person was not resident or in the district or where his place of abode was not known.

(b) Political Agent and his Assistant were to keep only the substance of all proceedings in cases requiring sentences below three years. In other cases, full notes of the proceedings had to be kept in English.

(c) Proceedings before Mouzadars etc. were not required to be in writing but if a person could be found to be able to write, a brief note of the proceeding was to be made. ( d) All fines levied by the Mouzadars etc. were to be paid to the Political Agent or his Assistant or some officer specially empowered by the Political Agent.

(e) It was discretionary to examine witnesses on oath E in any form or to warn them that they were liable to punishment for perjury if they stated what they knew to be false.

On February 6, 1874 there was formation of the Chief Commissionership in Assam. The Governor-General in Council issued a proclamation under s. 3 of 17 & 18 Viet., Ch. 77. By the proclamation he took under his immediate authority and management the backward territories then under the Lt.

Governor of Bengal including the Naga Hills. By another notification the Governor-General in Council in exercise of powers under s. 3 of the Act formed those territories into a Chief Commissionership called the Chief Commissionership of Assam. In April of the same year an Act (Act 8 of 1874) was passed to provide for the exercise within the said territories, of the powers which were before exercised under or by virtue of any Jaw or regulation by the Lt. Governor of Bengal and the Board of Revenue. By the first section these powers were transferred and vested in the Govemor- General in Council and by s. 2 the Governor-General ilt Council was empowered to delegate to the Chief Commissioner all or any of the powers or withdraw any power so delegated. On 16th of April, 1874 the Governor-General in Council by notification delegated to the Chief Commissioner of Assam powers which Ml2SupCl/66-8

I /

842 SUPlll!MJ! COUR.T Rl!POllTS (1966] 3 S.C.ll.

were fonnerly vested in or were exercisable by the Lt. Governor A of Bengal. On June 13, 1874 the Governor-General in Council

made alterations in the Rules of 1872 but only to make them accord with the political changes and republished them for general information. The changes were that wherever the Commissioner was mentioned in the Rules, the Chief Commissioner was substituted and where the Lt. Governor was mentioned the Governorn General was to be read. The Rules, however, remained the same.

We shall refer to these Rules as the Rules of 1874.

Doubts having arisen in some cases as to which Acts or Regulations were in force or the boundaries of the territories in which they were in force and with a view to providing a ready means for ascertaining the enactments in force in the respective areas and the boundaries of the areas and for administering the law therein, an Act was passed by the Governor-General of India in Council.

This Act was intituled the Scheduled Districts Aet, 1874 (14 or 1874). This Act remained on the statute book till the Government of India Act, 1935 came into force when it was repealed by the Adaptation of Laws Order, 1937. The scheme of the relevant provisions of this Act was this. The Act extended to the whole of India. It defined "Scheduled Districts" by reference to its First Schedule and these districts were to include such other territories in which the Secretary of State in Council declared the provisions of 33 Viet. Ch. 3 (section 1) to be applicable. The Act repealed other enactments by its Second Schedule. By sections 3 and 4 the local Government was enabled, with the previous sanction of the Governor-General in Council to notify what enactments were in force and what were not in force in any of the Scheduled Districts and to correct any mistake of fact in a notification already issued under that Act but not so as to change a declaration once made and on the issue of such notifications the intended effect was to follow. By s. 5 the local Government with the previous sanction of the Governor-General in Council was enabled to extend to the Scheduled Districts any Act in force in British India. Sections 6 and 7, which were the subject of great discussion in this appeal, may be quoted for future reference:

"6. Appointment of officers and regulation of their procedure.

The Local Government may from time to time:-

(a) appoint officers to administer civil and criminal justice and to superintend the settlement and collection of the public revenue, and all matters relating to rent, and otherwise to conduct the administration, within the Scheduled Districts,

(b) regulate the procedure of the officers so appointed; but not so as to restrict the operation of any enactc

A •

NAGALAND v. RATAN SINGH (Hidayatullah, /.) 8'3

ment for the time being in force in any of the said Districts,

(c) direct by what authority any jurisdiction, powers or duties incident to the operation of any enact•

ment for the time being in force in such District shall be exercised or performed."

"7. Continuance of existing rules and officers.

All rules heretofore prescribed by the Governor-

General in Council or the Local Government for the guidance of officers appointed within any of the Scheduled Districts for all or any of the purposes mentioned in section six and in force at the time of the passing of this Act, shall continue to be in force unless and until the Governor General in Council or the Local Government, as the case may be, otherwise directs.

All existing officers so appointed previous to the date on which this Act comes into force in such District, shall be deemed to have been appointed hereunder."

Section 8 enabled settlement of question as to boundaries of Scheduled Districts. Section 9 indicated the place of imprisonment or of transportation. Sections 10 and 11 do not matter to us.

The Assam Frontier Tracts Regulation 1880 (Regulation ll of 1880) was next enacted to provide for the removal of certain Frontier Tracts in Assam from the operation of enactments in force there. Section 2 of the Regulation read:

"2. Power to direct that enactment shall cease to be in force.

When this regulation has been extended in manner hereinbefore prescribed to any tract, the Chief Commissioner may from time to time, with the previous sanction of the Governor General in Council, by notification in the local Gazette, direct that any enactment in force in such tract shall cease to be in force therein, but not so as to affect the criminal jurisdiction of any court over European British Subjects."

Under the provisions of this Regulation the Criminal Proced~ Codes of 1882 and 1898 were withdrawn from the Naga Hills.

By proclamation No. 2832 dated the 1st September, 1905 the Governor-General, with the sanction of His Majesty, comtituted the Province of Assam (to which were added certain districta

A • -.

NAGALAND v. RATAN SINGH (Hidayatullah, !.) 845

Lt. Governorship. Eastern Bengal was reunited with West Bengal and Assam once again became a separate Province with a Chief Commissioner. This new scheme took effect from April 1, 1912.

In 1914 by two notifications (Nos. 5467P and 5459P dated 13-10-1914), which were issued under Regulation 2 of 1818, all enactments in force in the Western, Central, North East and Eastern Tracts were to cease to be in force and under s. 5 of the Scheduled Districts Act, 1874, the Indian Penal Code, the Indian Police Act, the Indian Arms Act, the Assam Land Revenue Regulation, the Assam Forest Regulation and the Whipping Act were extended by the Chief Commissioner with the previous sanction of the Governor-General in Council. The administration of Assam thereafter continued under the above mentioned Acts and the procedural part was taken from the Rules of 1906 which laid down that in criminal trials the spirit of the Criminal Procedure Code was to be followed because the Code itself was not in force. In 1921 Assam became a Governor's Province.

We next come to March 25, 1937. On that day the Governor of Assam prescribed revised Rules under the powers vested in him by s. 6 of the Scheduled Districts Act. These Rules did not materially differ from the Rules of 1872, 1874 and 1906. The Rules of 1937 began by stating that they cancelled "all previous orders on the subject." The changes that were introduced were of the pattern we have known before. The administration of the Naga Hills was vested in the Governor of Assam, the Deputy Commissioner, the Additional Deputy Commissioners and Assistants to the Deputy Commissioner, the Mouzadars, etc. The Deputy Commissioner, the Additional Deputy Commissioner and Assistants to the Deputy Commissioner were to be appointed by the Governor. As a result of these changes, the provisions of Part III dealing with criminal justice were suitably amended. The first change was lo assign duties to the Additional Deputy Commissioner. The term Deputy Commissioner was said to include an Additional Deputy Commissioner and the latter had the same powers as the former (Rule !SA). The terms District Magistrates, Additional District Magistrates and Magistrates of the District, Sub-Divisional Magistrates or Magistrate of a Sub-Division were to refer to in any law in force in Naga Hills to the Deputy Commissioner, Additional Deputy Commissioner and Sub-Divisional Officers, Mokokchung (Rule 15B). In respect of all offences under the Indian Penal Code or under any other law to be investigated, inquired into, tried or otherwise dealt with according to the Rules of 1937 the words and expressions defined in s. 4 of the Criminal Procedure Code, 1898 were to have the same meanings.

The Deputy Commissioner could impose any sentence but the sentence of death was subject to confirmation by the High Court.

The Assistants to the Deputy Commissioner were equated to

84&

SUPREME

COUJ.T UPOllTS

Magistrates of First Class, but the Governor could, if he thought

fit, invest an Assistant to the Deputy Commissioner either generally or for trial of a particular case or cases with all powers of the Deputy Commissioner, except to pass a sentence of death. Another change was that instead of the Lt. Governor the High Court of Assam and the Deputy Commissioner could call for the record of any case and reduce, enhance or cancel any sentence or remand the case for retrial. Sentences of death passed by the Deputy Commissioner were subject to the confirmation by the High Court of Assam

ule 16-A) and the Deputy Commissioner while convicting the accused and sentencing him to death was to inform the accused about the period in which the appeal should be filed (Rule 16-B).

The other Rules defined the powers of the High Court in cases submitted for confirmation of sentence (Rule 16-C, D and E.).

Appeals lay from the Deputy Commissioner to the High Court in any case.

These Rules, it is contended on behalf of the State of Nagaland, continue till today. They were amended in 1952, 1954, 1956 and !957. In 1937 by the Adaptation of Laws Order the Scheduled Districts Act was repealed but there was a special saving which read as follows:-

"This Act shall cease to have effect, without prejudice to the continuing validity of any notification, appointment, regulation, direction or determination made thereunder and in force immediately before the commencement of Part III of the Government of India Act, 1935 :

Provided that, where immediately before the first day of April, 1937, any enactment is, by virtue of any notification made under this Act, in force in any area in British India, either with or without restrictions or modifications, the Central Government, in relation to matters enumerated in List I of the Seventh Schedule to the Government of India Act, 1935, and the Provincial Government, in relation to other matters, may, within six months from the said date, by notification in the Official Gazette, declare that the enactment in question shall have effect in that area subject to such modifications and adaptations specified in the notification as the Government in question may deem necessary or expedient to bring it into accord with the Government of India Act, 1935."

In 1945 the Assam Frontier (Administration of Justice) Regulation, 1945 (Regulation I of 1945) as enacted. It was .originally made applicable to Balipara, Lakh1mpur, Sad1ya and T1rap Frontier Tracts. It was applied to Tuensang m 1955.

In the main these Regulations were the same as h.e.Rules of 1.937 applicable in the Kohima and Mokokchung D1vmons but shght differ-

A _..._

D ,

NAGALAND v. llATAN SINGH (Hidayatullah, J.) 847

cnce existed in the powers of the High Court in the matter of transfers and appeals against acquittals. As these were the subject of an argument we shall refer to these differences later.

Before the formation of the State of Nagaland the laws in the Tuensang Frontier Division and those in force in the rest of the North-East Frontier Agency were assimilated by the Tuensang Frontier Division (Assimilation of Laws) Regulation, 1955 (No. 4 of 1955). These were made by the Governor in exercise of the powers conferred by clause (2) of Art. 243 of the Constitution read with Sub-paragraph (2) of paragraph 18 of the Sixth Schedule to the Constitution by the President of India. By Paragraph 3 of that Regulation all laws except the Tuensang Frontier Division (Undesirable Persons) Regulation, 1951, which were extended to or were in force in Tuensang Frontier Division but were not extended to and not in force in the rest of the North East Frontier Agency ceased to be in force in Tuensang Frontier Division.

Similarly, all laws which immediately before the appointed day did not extend to or were not in force in the Tuensang Frontier Division but extended to or were in force in the rest of the North East Frontier Agency, were extended to or came into force in the Tuensang Frontier Division. In other words, the laws in the North East Frontier Agency became completely uniform except in one respect, namely, the continued enforcement of the Undesirable Persons Regulation referred to above in Tuensang Division.

As the Criminal Procedure Code was never in force in any part of the North East Frontier Agency it did not come into force in the Tuensang Area. On the other hand, the Rules of 1937 if they were valid and in force got extended to the Tuensang area also.

In 1921, in accordance with the provisions of the Government of India Act, Assam became a Governor's Province and later one of the States in the Indian Republic. The Regulations of 1952, 1954, 1956 and 1957 were made by the Governor in exercise of his powers under the Sixth Schedule of the Constitution. We shall now consider the arguments in these appeals which have covered a wide field, and they were also apparently addressed in the High Court and found favour there.

We may here dispose of one argument which is somewhat independent of the others. It is contended that the Rules of 1937 did not survive the repeal of the Scheduled Districts Act, 1874 by the Adaptation of Laws Order, 1937, notwithstanding the saving clause in the Adaptation of Laws Order. This argument is based on the submission that the savings clause (reproduced earlier by us) did not mention rules as such. We do not agree.

The saving clause preserved all notifications. The Rules of 1937 were enacted by notification and if notifications were saved the Rules in the notification were also saved. After the passing of the Government of India Act, 1935, the Rules of 1937 would be successi-

848 SUPREME COUl\T llEPOllTS

vely preserved by ss. 292 and 293 of the Government of India Act, 1935, s. 18 of the Indian Independence Act, 1947 and Art. 372 of the Omstitution. The real questions are whether they were invalid for any reason to start with or became void after the Con'1it•tion.

The powers of the Governor-General in Council and now of the President derived from the various constitutional documents are not and indeed cannot be in doubt.

Hence the attempt of the respondents is to challenge the powers of the Lt. Governor, Chief Commissioners and the Governor who have in turns made Rules for the administration of these areas. The attack is on the Rules of 1906 and 1937 as being incompetently made under the Scheduled Districts Act and on ss. 6 and 7 of the Scheduled Districts Act, if it be held that the Rules were competently made.

We shall deal first with these arguments.

The contention that the Rules of 1937 were void ab initio is supported by many arguments. The submission is that ss. 6 and 7 of the Scheduled Districts Act did not confer any powers of legislation to regulate judicial procedure. It is pointed out in this connection that s. 6(a) gave powers to appoint officers to administer civil and criminal justice ands. 6(b) allowed the procedure of the officers so appointed to be regulated which meant administrative procedure and no general law-making authority can be implied and s. 6(c) enabled the choosing of authority by which any jurisdiction, power or duty incident to the operation of any enactment for the time being in force should be exercised or performed in any scheduled district. Reference is made in this connection to s. 5 of the Act of 1869 where it was laid down that the offi- <:ers so appointed would, in the matter of administration and superintendence, be subject to the direction and control of the Governor and would be guided by such instructions as he might, from time to time, issue.

It is contended that by regulating the procedure is meant instructions on the administrative side.

In our opinion this is a wrong reading of the section.

We must not forget that the Scheduled Districts Act was passed because the backward tracts were never brought within the operation of all the general Acts and Regulations (particularly the Criminal Procedure Code) and were removed from the operation and jurisdiction of the ordinary courts of Judicature. In these areas the Indian Penal Code was always applicable but not the Code of Criminal Procedure. The local Governments were empowered by the Scheduled Districts Act to appoint officers to administer civil and criminal justice and to regulate the procedure of the officers so appointed. Officers appointed to administer civil and criminal justice must follow some procedure in performing this

task.

Regulating procedure, therefore, meant more than framing

NAOALAND v. !UTAN SINGH (Hidayatullah, !.) 849

administrative rules. It meant the control of the procedure for the effective administration of justice. It is significant that the Governor-General in Council, who enacted the Scheduled Districts Act, framed the Rules of 1874 containing comprehensive rules of procedure for dealing with criminal cases. This was a clear exposition of ss. 6 and 7 of the Scheduled Districts Act by the Governor-General in Council himself. The Act was understood as conferring full powers to regulate not the administrative procedure only but also the procedure for administration of criminaljustice.

As the Rules of 1872, 1874, 1906 and 1937 were almost the same (except for a few changes rendered necessary by the altered political conditions) it is clear that a succession of officers saw the necessity of Rules controlling not only the administrative side but the judicial side of administration of justice. In our judgment the construction of ss. 6 and 7 attempted by the respondents cannot be accepted.

It is next contended that the Act itself was bad because the Legislature did not legislate on the subject of judicial procedure but left essential legislation to a delegate, without laying down any or at least enough guidance in the Scheduled Districts Act for those who were to make Rules under it. In this connection learned counsel has drawn our attention to several rulings in which the question of excessive delegation has been considered by this Court and in particular we have been referred to Re the Delhi Laws Act, 1912,(1) Hamdard Dwakhana (Wakf)Lal Kuan v. Union of India,(2) Vasant/a/ Maganbhai Sanjanwa/a v. State of Bombay(3) and D. S. Grewal

v. State of Punjab.(4) It is submitted that ss. 6 and 7 of the Scheduled Districts Act laid down no policy, and did not afford a guide in the making of Rules except to say that officers should be appointed to administer civil and crimin.al justice and that the local Government might regulate the procedure of such officers, thereby leaving the essential law-making to the delegate.

In this Court we have on several occasions pointed out that guidance may be sufficient if the nature of thing to be done and the purpose for which it is to be done is clearly indicated. Instances of such legislation were cited before us and the case of Harishankar Bag/a v. Madhya Pradesh(S) was one of them. The policy and purpose may be pointed out in the section conferring the powers and may even be indicated in the preamble or elsewhere in the Act.

The preamble of the Scheduled Districts Act shows that these backward tracts were never brought within, but from time to time were removed from, the operation of general Acts and Regulations and the jurisdiction of the ordinary courts of judicature was also excluded.

It was therefore necessary to ascertain the enactments

(I) [1951] S.C.R. 747.

(3) (1961] I S.C.R. 341.

(4) (1959] Supp. I S.C.R. 792.

(5) [1955] I S.C.R. 288.

850 IUP•Elll! COU.T lll!PO!lTS

in force and to set up a machinery for making simple rules. The Act conferred on the local Governments power to appoint officers for administration of civil and criminal justice within the Scheduled Districts and empowered the local Government to regulate the procedure of the officers so appointed and to confer on them authority and jurisdiction, powers and duties incident to the administration of civil and criminal justice. These provisions afforded sufficient guide to the local Government that the administration of civil and criminal justice was to be done under their control by the officers appointed by them and the procedure which they were to follow must be laid down. This was not an instance, therefore, of excessive delegation at all. The Legislature clearly indicated the policy and the manner of effectuating that policy. There was sufficient guidance in the three sub-sections of s. 6 read as a whole with the preamble and the Chief Commissioner's Rules made in 1872 and republished in 1874 by the Governor-General in Council were also available as a further guide as the last were continued in force by s. 7. Indeed, the subsequent Rules of 1906 and 1937 repeated the Rules of 1872 & 1874 with amendments necessary owing to political changes and only slightly liberalised them in some ways. We do not consider that there was excessive delegation of legislative authority by the Legislature.

It is next contended that s. 7 of the Scheduled Districts Act did not confer any power upon the local Government to alter in any way the Rules made by the Governor-General in Council.

That section says that Rules which had hitherto been prescribed by the Governor-General or the local Government for the guidance of the officers appointed within any of the scheduled districts were to continue to be in force unless and until the Governor- General or the local Government, as the case may be, otherwise directed. It is admitted that the Governor-General in Council, possessing an overriding power, might even have amended the Rules made by the local Government. But it is submitted that the Governor-General in Council could amend his own Rules and the local Government could amend its own Rules but the Local Government, being a delegate, could not amend or cancel the Rules of the Governor-General in Council. It is urged that the Rules of 1906 made by the Lt. Governor and the Rules of 1937 made by the Governor were ineffective. With regard to the Rules of 1906 it is sufficient to say that the Bengal Assam Laws Act 1905 authorised local Government by notification to say by what officer any authority or power was to be exercisable and any such no1ijicatio11 was to have effect as if enacted in the Act itself. When the Rules of 1906 were made by the local Government they had effect as if they were enacted in Act 7 of 1905. But the power could be exercised by the Governor under the Scheduled Districts Act ss. 6 and 7 to make fresh Rules.

By that Act the Governor-General in Council conferred on the

F ,

NAGALAND v. JlATAN SINGH (Hidayatullah, J.) 85?

A local Government an equal or concurrent power and this is clearly indicated by the word "as the case may be" in s. 7 of the Act.

Those words do not, as it contended, show that the local Government could only amend its own Rules. These words rather show that whoever made the rules the authority of the Act would make them binding. In our judgment the Rules of 1937 were validly B enacted.

In order to avoid this implication, the Rules are attacked as ultra vires Arts. 21and14. Article 21 is used because it is contended that these Rules do not amount to law as we understand it, particularly where the Rules say that not the Criminal Procedure Code but its spirit is to govern the administration of justice.

It is urged that this is not a law because it leaves each officer free to act arbitrarily. This is not a fair reading of the Rule. How the spirit of the Code is to be applied and not its letter was considered by this Court in Gurumayum Sakhigopa/ Sarma v. K. Ongbi Anisija Devi (Civil Appeal No. 659 of 1957 decided on 9th of February, 1961) in connection with the Code of Civil Procedure. With reference to a similar rule that the courts should be guided by the spirit and should not be bound by the Jetter of the Code of Civil Procedure this Court explained that the reason appeared to be that the technicalities of the Code, should not trammel litigation embarked upon by a people unused to them. In that case although a suit was ordered to be dismissed for default of appearance, an order was passed on merits. The question arose whether it was dismissed under0·9r. 8 or0·17 r. 3 of the Code of Civil Procedure. It was held by this Court that it did not matter under which Order it was dismissed but that no second suit could be brought on the same cause of action without getting rid of the order dismissing the suit. In this way this Court applied the spirit of the Code and put aside the technicalities by attempting to find out whether the dismissal was referable to 0. 9, r. 8 or 0. 17, r. 3 of the Code.

That case illustrates how the spirit of the Code is used rather than the technical rule. In the same way, under the criminal administration of justice the technical rules are not to prevail. over the substance of the matter. The Deputy Commissioner in trying criminal cases would hold the trial according to the exigency of the case. In a petty case he would follow the summons procedure but in a heinous one he would follow the procedure in a warrant case.

The question of a Sessions trial cannot arise because there is no provision for committal proceeding and there are no Sessions Judges in these areas. Therefore, the Deputy Commissioner who was trying the case observed that he was going to observe the warrant procedure and in the circumstances he was observing the spirit of the Code.

Laws of this kind are made with an eye to simplicity. People in backward tracts cannot be expected to make themselves aware

NAGALAND V. 11.ATAN SINGH (Hidayatu//ah, J.) 85 3

A of Nagaland. We have, however, no reason to think that the Advocate-General could have conceded this point. It was made clear to us that there was some mistake and the assumption made by Nayudu J. was based on a misapprehension. It is now admitted by Mr. A. K. Sen on behalf of the respondants that the Criminal Procedure Code does not apply to any of the three districts and B therefore there is no question of any discrimination between one district and another in Nagaland.

• I

Lastly, it is contended that the Rules themselves allow for discrimination because one officer may take something to be the spirit of the Criminal Procedure Code and another may not. The requirements of the case must determine what should be applied from the Criminal Procedure Code and what should not. The Rules have been purposely made elastic so that different kinds of cases and different situations may be handled not according to a set pattern but according to the requirements of the situation and the circumstances of the case. In a backward tract the accused is not in a position to defend himself meticulously according to a complex Code. It is, therefore, necessary to leave the Judge free

so that he may mould his proceedings to suit the situation and may be able to apply the essential rules on which our administration of justice is based untramelled by any technical rule unless that rule is essential to further the cause of justice. This would rather lead to less discrimination because each accused would be afforded an opportunity which his case and cricumstances require. The Rules of 1937 were designed for an extremely simple and unsophisticated society and approximate to the rules of natural justice.

It is impossible in such cricumstances to think, that because the Judge has more discretion than if he acted under the Criminal Procedure Code or is able to bring different considerations to the aid of administration of justice that there must be discrimination.

If a Judge does not apply the spirit. of the Code but goes against it or acts in a manner which may be considered to be perverse the High Court will consider his action and set it right. As we said earlier the law has not attempted to control discretion by .

Rules in this area but has rather left discretion free so that the rule may not hamper the administration of justice. As there is no vested right in procedure the respondents cannot claim that they be tried under the Criminal Procedure Code in this State where the Code is excluded. In such a situation it is difficult to find discrimination.

H It was lastly contended that there is discrimination between one set of rules and another; that in some of the other backward tracts of Assam the rules are different and a comparative study was made before us of the different rules, as for example, Rules of 1874 '

854 SUPRliMB

COURT RJIPOllTS

(1966) 3 S.C.ll.

1937 and the Assam Frontier Administration of Justice Regulation, 1945 which applied to Balipura, Lakhimpur, Sadiya and Tirap tracts and had been applied in Tuensang Division in 1955. The main differences are in the matter of appeals against acquittals and the power of transfer. In so far as the appeals against acquittals are concerned, it is, of course, obvious that where such a power is not conferred there cannot be an appeal against acquittals. In so far as transfer is concerned, we see no difficulty because the rules were different to start with in different districts and even if the provisions for transfer may not be in one part the spirit of the Code of Criminal Procedure would permit transfer in that part. Similarly, in some places confirmation of sentence above 7 years is required and in some others there is only a right of appeal. This depends on how advanced each area is. The attempt, of course, is to bring these territories under the Criminal Procedure Code applicable in the rest of India, by such stages as appear justified.

As that stage is not yet reached little differences must exist but no discrimination can be spelled out from the differences. Art. 371A

of the Constitution itself contemplates a different treatment of these tracts and the differences are justified by the vast differences bet- D ween the needs of social conditions in Nagaland and the various stages of development .of different parts. We do not, therefore, consider that a companson of these rules leads to any conclusion that there is likelihood of discrimination which would offend the Constitution.

We accordingly hold that the Rules of 1937 continue to be in force and govern the trial of these respondents. The Code of Criminal Procedure admittedly does not apply there and the Additional Deputy Commissioner was therefore right in holding the trial under the Rules of 1937. It is obvious that in following the spirit of the Code and in applying the warrant procedure the Deputy Commissioner followed the right procedure and the High Court was in error in thinking that neither the Rules of 1937, nor any Rules applied to this area. We accordingly allow the appeals and set aside the order of the High Court. The trial of the respondents shall proceed under the Rules of 1937.

We may, however, say that it would be better if, as soon as it is found to be expedient, all Rules are cancelled and one uniform set of Rules is made for the whole of this area. This would obYiate having to find out through the mazes of history and the congeries of rules, notifications and regulations what law is applicable. If any diffici!lty is felt In making new rules recourse may easily be taken to the provisions of s. 31 of the State of Nagaland Act which enables the President, by order, to remove any difficulty to give effect to the provisions of the State of Nagaland Act. The history of this area shows that there have been difficulties in the past in

....

, .

NAGALAND v. llATAN SINGH (Hidayatullah, /.) 855

A ascertaining laws which were applicable at any point of time in any particular area and led to the passing of many Acts of British Parliament and of the Governor-General in Council to remove such difficufties. We do not think that such a state of affairs should continue indefinitely when the State of Nagaland Act itself gives sufficient power to remove difficulties.

B Appeals allowed.

STATE OF NAGALAND

RA TAN SINGH, ETC

March 9, 1966

P. B. GAJENDRAGADKAR, C.J.

K. N. WANCHOO

HIDAYATULLAH,

J.

C. SHAH

S. M. SIKRI, JJ

Scheduled Districts Act, 1874

Arts. 14 and 21

Criminal Procedure Code

Constitution of India

Code of Criminal Procedure

Dy tho Government of India Act, 1870

Scheduled Districts Act, 1874

Constitution of India

Art. 244

State of Nagaland was formed by the State of Nagaland Act, 1962

State of Nagaland Act

s. 6

Arts. 14 and 21

Scheduled Districts Act, 1874

Government of India Act, 1935

ss. 292

Government of India Act, 1935

s. 18

Indian Independence Act, 1947

Art. 372

WM no excessive delegation under the Scheduled Districts Act

s. 6

There WM no excessive delegation under the Scheduled Districts Act

There WM no excessive delegation under the Scheduled Districts Act

s. 7

By the Scheduled Districts Act

s. 7

Article 21

Code of Criminal Procedure

India

Ibis

Code of Criminal Procedure

Article 371

Nagaland

Assam and Nagaland High Court

1965 of the Assam and Nagaland High Court in Civil Rules Nos.

C. K. Daphtary

D. M. Sen

P. K. Goswami

Anil Barthukar

B. Dutta

Naunit Lal

A. K. Sen

S. S. Ray

I!. K. Puri

H. L. Arora

K. Puri and H. L. Arora, for the respondents (in all the appeals).

Nimz De

Hidayatullah

August 3, 1964

ss.

302

Indian Penal Code

C.R.P.

s. 436

Indian Penal Code

Kohima

Code of Criminal Procedure

Naga Hills District

Art. 226

C.

Sanjeeva Rao Nayudu

S. K. Dutta

Justice Dutta in a brief judgment reached the conclusion that the Rules

Assam

November 29, 1906

Go- vernor on November 29, 1906 were not validly made.

Scheduled Districts Act, 1874

British Parliament

Scheduled Districts Act

Art. 21

Nayudu

Arts. 14 and 21

East India Company

Government of East Jndia Company

After the Indian Councils Act

Section 22

Scheduled Districts Act, 1874

British India

When the Government of India Act, 1915

Fourth Schedule the Government of India Act, 1870

section 71

the Fourth Schedule the Government of India Act, 1870

the Fourth Schedule the Government of India Act, 1870

When the Government of India Act, 1919

s. 52

Constitution of new provinces

Thus at the inauguration of the Government of India Act, 1935

When the Government of India Act, 1935

ss. 91 and 92

Section 92

After this the Scheduled Districts Act

Article 244

Sixth Schedule

Sixth Schedule

Sixth Schedule

January 19, 1954

I of 1954) which came into force on January 19, 1954.

Misimi Hills District

Mokokchung

Kohima District

Mokokchung District

Tuensang District

State of Nagaland Act

Sixth Schedule

State of Nagaland was formed by the State of Nagaland Act, 1962

State of Nagaland was formed by the State of Nagaland Act, 1962

State of Nagaland Act

State of Assam

State of Nagaland

section 26

Seventh Schedule

Central Government

Government of Nagaland

Section 27

s. 28

State of Nagaland Act

September 24, 1869

Governor-General enacted the Garo Hills Act, 1869

Naga Hills

Section 4

s. 5

s. 9

Jaintia Hills

Khasi Hills

Khasi

L. R. 5 I.A. 178

October 14, 1871

On October 14, 1871 acting under s. 9 of the Act of 1869 the Lt.

s. 9

Commissioner

SUPREME COURT RBPORTS

(1966) 3 S.C.R.

s. 5

Naga Hills Agency

August 7,

1872

Part II provided for police and consisted of Rules

First Class as laid down in the Criminal Procedure Code

Code of Criminal Procedure

February 6, 1874

s. 3

Bengal

Governor of Bengal including the Naga Hills.

s. 3

s. 2

16th of April, 1874

June 13, 1874

shall refer to these Rules as the Rules

First Schedule

section 1

Second Schedule

sections 3 and 4

s. 5

Sections 6 and 7

Continuance of existing rules and officers.

Continuance of existing rules and officers.

Section 8

Section 9

Sections 10 and 11

Assam Frontier Tracts Regulation 1880

Section 2

The Assam Frontier Tracts Regulation 1880

The Assam Frontier Tracts Regulation 1880

1st September, 1905

Eastern Bengal

West Bengal

April 1, 1912

This new scheme took effect from April 1, 1912.

s. 5

Scheduled Districts Act, 1874

Indian Penal Code

Police Act

Arms Act

March 25, 1937

On that day the Governor of Assam prescribed revised Rules

s. 6

On that day the Governor of Assam prescribed revised Rules

On that day the Governor of Assam prescribed revised Rules

These Rules did not materially differ from the Rules

Indian Penal Code

s. 4

Criminal Procedure Code, 1898

High Court of Assam

Part III of the Government of India Act, 1935

first day of April, 1937

List I of the Seventh Schedule to the Government of India Act, 1935

Balipara

Tuensang Frontier Division

North-East Frontier Agency

Art. 243

Sixth Schedule

Tuensang Frontier Division

North East Frontier Agency

North East Frontier Agency

Tuensang

Sixth Schedule

Scheduled Districts Act, 1874

After the passing of the Government of India Act, 1935

ss. 292 and 293

After the passing of the Government of India Act, 1935

After the passing of the Government of India Act, 1935

Government of India Act, 1935

s. 18

Indian Independence Act, 1947

Art. 372

Chief Commissioners and the Governor who have in turns made Rules

ss. 6 and 7

Chief Commissioners and the Governor who have in turns made Rules

Chief Commissioners and the Governor who have in turns made Rules

ss. 6 and 7

s. 6(a)

s. 6(c)

s. 5

Indian Penal Code

Code of Criminal Procedure

ss. 6 and 7

ss. 6 and 7

ss. 6 and 7

s. 6

s. 7

s. 7

Bengal Assam Laws Act 1905

ss. 6 and 7

s. 7

Arts. 21

Article 21

9th of February, 1961

the Code of Civil Procedure

the Code of Civil Procedure

the Code of Civil Procedure

Sen on behalf of the respondants that the Criminal Procedure Code

Assam Frontier Administration of Justice Regulation, 1945

Balipura

Lakhimpur

Code of Criminal Procedure

Art. 371A

Code of Criminal Procedure

s. 31

State of Nagaland Act

State of Nagaland Act

State of Nagaland Act


MjS. RAM CHAND AND so:-; s St:GAR MILLS PVT. LTD.

KANHAYA LAI. llHARGAVA & ORS .

. \larch 10. 1966

[K. SCBl!A RAO A!'D V. RA\tASWA.,11, JJ.j

Code of Civil Procedure (Act 5 of 1908), s. 151 and O.XXIX r. 3l)irector of Company summoned to answer material quertions--Company

when responsible for his non-appearance-Inherent powers of court to prevent abuse of process of court-Scope of.

'!he first respondent filed a suit against the appellant company and C one R for recovery of a sum of money. The coun acting under OXXIX r. 3 of the Code of Civil Procedure dirc-ctcd J one of the directors of the company to appear before it and answer certain material questions in relation to the suit and when he did not appear the appellant waa directed to produce him, with the same result.

The Coun after gi•ing notice to the appellant struck off ils defence in purported exercise of its inherent powers under s. 151 of the Code. The High Court dismissed the appellant's re, ision petition whereupon it appealed to this coun by special leave.

It was contended on behalf of the appellant that inherent power could not be invoked in the circumstances of the case.

HELD : ( i) Whatever limitations are impooed by construction on tho provi•ions of s. 151 of the Code. they do not control the ullAloobte<l power of the court conferred under s. 151 of the Code to make a suitable order to prevent the abuse of the process of the Court. (860)

Padam Sen v. Stare of VIiar Pradesh, [1961] I S.C.R. 884, MQJtOhltr Lal Chopra v. Rai Bahadur Ron Raja Ser/a !lira/al, (1962) Supp. I S.C.R. 450 and Arjun Singh v. Moliindra Kumar, (1964) 5 S.C.R. 946, applied.

(ii) There is nothing in O.XXIX of the Code which expr..,.ly or by neca<sary implication, precludes the exerci,., of the inherent power of tho Coon under s. 151 of the Code. In a case of default made by a director

who failed to appear in conn when he was "° required under the afor"'3id rule, tho conn can make a suitable con.sequential order under ' 151 of the Code as may be necessary for the ends of justice or lo prevent the

abu"" of the process of the Coon. [861 EJ

(iij) 'Any director' in O.XXIX r. 3 need not be the same director who has signed and verified a pleading or on whom summons had been served.

He can be any one of the directors who will be in a position to G answer malorial questions relating to the suit. (861 A-BJ

(iv) In the prc<cnt case the coon was justified in &triking off tho defence of the appellant company.

Unless there was a finding of collusion between the appellant and the director in that the former prevented the latter from appearing in court it was difficlt to make the company constructively liable for the default of one of its directo"- A director'a act.s outside the scope of his powers could not bind the company and it wa• nor possible to hold that the director in refus:ng to respond to the notice given by the court was acting within the scope of the power9 conferred on him. [861H-862 DJ

.. ~

,,.,

\ J

-' ' .

iP' •

. r

' t

CIVIL APPELLATE JURISD!Cl!ON : Civil Appeal No. 166 of 1966.

Appeal by special leave from the order dated August 27, 1965 of the Punjab High Court (Circuit Bench) at Delhi in Civil Revision No. 289-D of 1965.

S. N. And/ey, Rames/mar Nath, Mahinder Narain, for the appellants.

A. K. Sen. B. Sen, B. P. .Maheshwari, P. D. B!wrgava and M. S. Narasimhan, for the respondents .

The. Judgment of the Court was delivered by

Sobba Rao. J.-This appeal by special leave is directed against the order of the Punjab High Court confirming that of the Subordinate Judge, Delhi, striking out the defence of the appellant under s. 151 of the Code of civil Procedure, hereinafter called the Code.

Kanhaya Lal Bhargava, the 1st respondent, filed a suit on April 27, 1962, in the Court of the Subordinate Judge, First Class, D Delhi, against Messrs. Ram Chand & Sons Sugar Mills Private Limited, the appellant, and one Ram Sarup for the recovery of a sum of Rs. 45,112.94.

Pending the suit, on October 27, 1964, the !st respondent filed an application in the said court under O.Xl, r. 21, of the Code, read with O.XXIX, r. 3, thereof, for striking off the defence or in the alternative for directing Jugal Kishore, a E director of the Appellant-company, to appear in court on December 14, 1964. On December 3, 1964, the court made an order therein directing the said Jugal Kishore to be present in court on December 14, 1964, to answer material questions relating to the suit. The appellant took a number of adjournments to produce the said Jugal Kishore on the ground that the latter was ill. On February 3, 1965, the court gave the appellant a final opportunity to produce F the said Jugal Kishore. Even so, the appellant took two more adjournments to produce him, but did not do so on the ground that he was ill. Finally on February 25, 1965, the court issued a notice to the I st defendant, appellant herein, to show cause why his defence should not be struck off. On March 16, 1965, after hearing the arguments the court held that J ugal Kish ore had failed G to comply with the orders of the court and was persistent in his default in spite of chances given to him; and on that finding, it struck off the defence of the appellant. The High Court, on revision, held that Jugal Kishore did not appear in court in spite of orders to that effect and that the learned Subordinate Judge had jurisdiction to strike out the defence of the appellant. It further H negatived the contention of the appellant that it was not in it' power to compel Jugal Kishore to appear in court on the ground that he was the director of the company and was under its control and, therefore, the appellant-company could not be heard to say M12Sup. CI/66 ·- 9

858 SUPRl!MI! COUIT REPORTS

[1966] 3 S.C.R.

that one of the directors did not obey the orders of the court. Hence A the present appeal.

The argument of Mr. S, N. Andley, learned counsel for the appellant, may te briefly stated thus: The Code of Civil Procedure provides express powct' for a court to strike out defence against a party under specified circumstances and, therefore, s. 151 thereof cannot be invoked to strike out the defence in other circumstances. for to do so will be to override the provisions of the Code. Order XXIX, r.3, of the Code does not empower the court to require the presonal appearance of a director other than a director who signed and verified the pleading within the meaning of O.XXIX, r. I, thereof.

Mr. Sen, learned counsel for the respondent, on the other hand, contended that the court had ample jurisdiction to strike out the defence of a party if he was guilty of abuse of the process of the eourt. In the instant case, he contended Jugal Kishore, one of the permanent directors of the appellant-company had adopted a recalcitrant attitude in defying the orders of the court to be present for interrogation and, therefore, the Subordinate Judge rightly, after giving ewry opportunity for him to be present, struck off the appellant's defence.

Section 151 of the Code reads:

"Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such E orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."

The words of the section appear to be rather wide. But the decisions of this Court, by construction, limited the scope of the said section.

In Padam Sen v. The State of Vilar Pradesh (1) the question raised was whether a M unsif had inherent powers under s. 151 of the Code to appoint a commissioner to seize account books. This C, ourt held that he had no such power.

Raghubar Dayal, J., speaking for the Court, observed:

"The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in s. 151 of the Code when the exercise of these powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well recognized that the inherent power is not to be exercised in a manner which will he contrary to or

(I) {t961J I S.C.R BS4, ES7.

1 .

' .

different from the procedure expressly provided in the Code".

This Court again in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hira/a/(') considered the question whether a court had inherent power under s. 151 of the Code to issue a temporary injunction restraining a party from proceeding with a suit in another

State. In that context, Raghubar Dayal, J., after quoting the passage cited above from his earlier judgment, interpreted the said observations thus:

"These observations clearly mean that the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in s. 151 itself.

But those powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the Code or against the intentions of the Legislature. This restriction, for practical purposei, on the exercise of these powers is not because these powers are controlled by the provisions of the Code but because it should be presumed that the procedure specifically provided by the Legislature for orders in certain circumstances is dictated by the interests of justice."

This Court again in Arjun Singh v. Mahindra Kwnar(Z) considered the scope of s. 151 of the Code. One of the questions raised was whether an order made by a court under a situation to which O. IX, r. 7, of the Code did not apply, could be treated as one made under s. 151 of the Code. Rajagopala Ayyangar, J., made the following observations:

"It is common ground that the inherent power of the Court cannot override the express provisions of the law. In other words, ifthere are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. The prohibition contained in the Code need not be expressed but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates." Having regard to the said decisions, the scope of the inherent power of a court under s. !SI of the Code may be defined thus: The inherent power of a court is in addition to and complementary H to the powers expressly conferred under the Code. But that power will not be exercised if its exercise is inconsistent with, or comeo

(I} [1962] Supp.

I S.C.R. 450, 461.

RAMCHAND MILLS V. K. L, BHARGAVA (S11bba Rao, J.) 861

A If so, there is no reason why the director who may be able to answer such material questions is excluded from the scope of r. 3. Such an interpretation will defeat the purpose of the said rule. Therefore, "any director" in r. 3 need not be the same director who has signed and verified a pleading or on whom summons has been served.

He can be any one of the directors who will be in a postition to B answer material questions relating to the suit.

Even so, learned counsel for the appellant contended that O.XXIX, r. 3, of the Code did not provide for any penalty in case the director required to appear in court failed to do so. By drawing an analogy from other provisions where a particular default carried a definite penalty, it was argued that in the absence of any such provision it must be held that the Legislature intentionally had not provided for any penalty for the said default. In this context the learned counsel had taken us through O.IX, r. 12, 0. X, r. 4, 0.XI, 21, O.XVI, r. 20, and 0. XVIII, rr. 2 and 3 of the Code. No doubt under these provisions particular penalties have been provided for specific defaults. For certain defaults, the relevant Orders provide for making an ex partc decree or for striking out the defence. But it does not follow from these provisions that because no such consequential provision is found in O.XXIX, the court is helpless against a recalcitrant plaintiff or defendant who happens to be a company. There is nothing m O.X, XIX of the Code. which, expressly or by necessary implication, precludes the exercise of the inherent power of the court under s. 151 of the Code. We are, therefore, of the opinion that in a case of default made by a director who failed to appear in court when he was so required under O.XXIX, r. 3, of the Code, the court can make a suitable conse-- quential order under s. 151 of the Code as may be necessary for the ends of justice or to prevent abuse of the process of the court.

The next question is whether the court can, as it did in the present case, strike off the defence of the appellant for the default made by its director to appear in court. Learned counsel for the respondent contended that both the courts in effect found that the director was guilty of a recalcitrant attitude and that he had abused the process of the court and, therefore, the Subordinate Judge had rightly exercised his inherent power in striking off the defence of the appellant, We are satisfied, as the courts below were, that Jugal Kishore, the director of the appellant-company, purposely for one reason or other, defied the orders of the court on the pretext of illness and had certainly abused the process of the court.

The learned Subordinate Judge would have been well within his rights to take suitable action against him, but neither of the courts found that the appellant was responsible or instrumental for the director not attending the court. Unless there is a finding of collusion between the appellant and the director in that the former

SUPREME COURT REPORTS

prevented the latter from appearing in court, we find it difficult to make the company constructively liable for the default of one of its directors. Many situations may be visualized when one of the directors may not obey the directions of the company or its hoard of directors or may be even working against its interests.

It cannot be disputed that a company and the directors of the company are different legal personalities. The company derives its rowers from the memorandum of association.

Some of the powers are delegated to the directors. 1-'or certain purposes they are said to be trustees and for some others to he the agents or managers of the company.

It is not necessary in this case to define the exact relationship of a director qua the company. The acts of the directors within the powers conferred on them may be binding on the company.

But their acts outside the said powers will not bind the company. It is not possible to hold that the director in refusing to respond to the notice given by the court was acting within the scope of the powers conferred on him.

He is only liable for his acts and not the company.

If it was established that the company was guilty of abuse of the process of the court by preventing the director from attending the court, the court would have been justified in striking off the defonce.

But no such finding was given by the courts below.

The orders of the courts below arc not correct. We set aside the said orders and direct the Subordinate Judge to proceed with the suit in accordance with law.

The appeal is~ allowed, hut. in the circumstances of the case. without costs.

Appeal a/1011 ""

M/S. RAM CHAND AND SONS SUGAR MILLS PVT. LTD

KANHAYA LAI. llHARGAVA & ORS

K. SCBl!A RAO

Code of Civil Procedure

s. 151

the Code of Civil Procedure

s. 151

s. 151

s. 151

(1964) 5 S.C.R. 946

s. 151

S. N.

Rames/mar Nath

Mahinder Narain

A. K. Sen. B. Sen

B. P. .Maheshwari

P. D. B!wrgava

M. S. Narasimhan

Sobba Rao

Subordinate Judge, Delhi

s. 151

the Code of civil Procedure

Kanhaya Lal Bhargava

Subordinate Judge, First Class, D Delhi

Ram Sarup

Jugal Kishore

December 3, 1964

December 14, 1964

February 3, 1965

February 25, 1965

March 16, 1965

J ugal Kish

S, N. Andley

The Code of Civil Procedure

s. 151

Sen

Section 151

s. 151

Raghubar Dayal

s. 151

s. 151

s. 151

s. 151

s. 151

Rajagopala Ayyangar

s. 151

s. 151