EMPEROR Vs. ANNAJI BALKRISHNA BARVE

JUDGEMENT

(1.) THIS is an appeal by the Government of Bombay against the order of acquittal passed by the Presidency Magistrate, Third Additional Court, Bombay, acquitting the accused Annaji Balkrishna Barve of the offence under Rule 39(6) read with Rule 39 (1)(b) of the Defence of India Rules 1939. The charge against the accused was that on January 28, 1943, he had in his possession without any lawful authority or excuse certain documents containing "prejudicial reports" and that such possession came within Rule 39(1)(b) and was punishable under Sub-rule (6). The learned Magistrate held on the evidence that out of the three documents, exhibits F G and H, relied on by the prosecution, exhibits F and G were "prejudicial reports" within the definition of that term in Rule 34(7). Exhibit F is a Congress bulletin and exhibit G consists of certain leaflets addressed to the police force. He, however, held that Rule 39(1)(b), was ultra vires inasmuch as it went beyond the powers of the Central Government to frame rules under sub-s (2) of Section 2 of the Defence of India Act. According to the learned Magistrate the only power which the Central Government had for making rules as to possession of information or documents was derived from two paragraphs, viz. (iv)(b) and (xxv) of sub-section (2) of Section

(2.) THAT sub-section says that without prejudice to the generality of the powers conferred by sub-section (1) the rules may provide for, or may empower any authority to make orders providing for, all or any of the following matters. Then thirty-five matters are enumerated. The matter relating to possession of information, according to the learned Magistrate, comes only under paragraph (iv)(b), which speaks of possession without lawful authority or excuse of information likely to assist the enemy and paragraph (xxv) which deals with possession of certain explosives, vessels, apparatus etc. Under paragraph (iv)(b) Government has power to frame rules only with regard to the particular kind of information mentioned in that paragraph, viz. information likely to assist the enemy. "Prejudicial report" as defined in Rule 34 does not include information likely to assist the enemy and there was no paragraph in Section 2(2) of the Act relating to possession of such reports. The learned Magistrate therefore thought that Rule 39(1)(b) was ultra vires and went beyond the rule-making power given to Government. 2. It was contended before him that even if Rule 39(1)(b) could not be framed under any of the paragraphs of sub-section (2), it would be valid if it carried out any of the general objects enumerated in Sub-section (1) of Section 2, viz. securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community. But the learned Magistrate repelled that argument also on the ground that it was held by the Federal Court in Emperor v. Keshav Talpade (1943) 46 Bom. L. R. 22 F. C. , that Sub-section (1) of Section 2 cannot be resorted to for justifying a rule which went beyond the rule-making powers given by Sub-section (2). The passage in Talpade's case which the learned Magistrate had in mind was as follows (p. 47) : The Legislature having set out in plain and unambiguous language in paragraph (x) the scope of the rules which may be made providing for apprehension and detention in custody, it is not permissible to pray in aid the more general words in Section 2(1) in order to justify a rule which so plainly goes beyond the limits of paragraph (x) ; though if paragraph (x) were not in the Act at all, perhaps different considerations might apply.

(3.) THE learned Advocate General contends that the subject-matter of the paragraphs in Sub-section (2) is not merely possession or information, but the possession of a document of a particular kind, viz. those which are likely to assist the enemy and that the possession of a prejudicial report falls under Sub-section (1). He contends in the alternative that Rule 39(1)(b) falls also within paragraph (iv)(b) of Sub-section (2). But that is only an alternative argument. His main argument is that it is really not covered by any of the paragraphs of Sub-section (2). Mr. Bhulabhai Desai has urged, on the other hand, that the, different kinds of information or report are enumerated in paragraphs (iv), (v), (vi), (xxv) and (xxvii) of Sub-section (2) and that therefore rules can be made only with regard to them and not with regard to any other kind of information. According to him, therefore, Rule 39 must conform to the conditions and limitations mentioned in these paragraphs and cannot go beyond them ; otherwise it would destroy the purpose of that sub-section. He further contends that in none of those paragraphs has the legislature granted rule-making powers for possession of a document containing a prejudicial report and that, therefore, it is necessarily implied that no rules can be made about the possession of such document even though they may relate to any of the objects mentioned in Sub-section (1). In my opinion, however, it cannot be said that rules relating to information or report must be made with regard to those matters only which are specifically provided for in Sub-section (2). Rule 39 (1)(b) deals with possession of documents containing prejudicial reports. It does not deal with information but with documents in the nature of prejudicial reports. Nor is such a document of the nature of report mentioned in para. (v) where "report" means rumour or news which might be spread among the public. THE matter dealt with under para. (iv) of Section 2 is not merely possession of any information but such information as is likely to assist the enemy. Rule 39(1)(a) is thus framed for punishing that particular type of information and it is admittedly valid. But no condition has been prescribed in any of the paragraphs of Sub-section (2) as regards making of rules for possession of documents containing prejudicial reports. That, in my opinion, does not mean that the Legislature prohibited the enactment of any rules for that purpose. It means that no limitations have been imposed for making rules relating to such reports under Sub-section (2) and that therefore the Central Government has the power to frame rules without any particular limitations, as the subject-matter of such reports does fall within the main heads of Sub-section (1). THEre is no doubt that in this case the two documents F and G fall within the objects stated in Sub-section (1) and they also satisfy several of the ingredients of "prejudicial act" in Rule 34(6) and as such fall within the definition of a "prejudicial report" in Rule 34(7) of the Defence of India Rules. Rule 39(1)(b) is framed under the rule-making power given under Section 2, Sub-section (1), just as Rule 39(1)(a) is made under the specific rule-making power given under para. (iv)(b) of Sub-section (2) of Section2. Both are equally valid and intra vires.