PANNALAL LAHOTI Vs. STATE OF HYDERABAD

JUDGEMENT

(1.) THIS petition has been filed under Articles 227 and 228 of the Constitution. The petitioner before us is the accused in a case pending before the District Magistrate, Gulbarga (No. 1/3 of 1951) in which he was charged for offences under the Defence of Hyderabad Rules read with Sections 342, 405, 409 and 477, Hyderabad Penal Code. The challan in the case was filed on 12. 12. 1950. The prosecution examined 18 witnesses and at that stage filed an application on 29. 12. 1951 before the Court praying that the Magistrate might proceed to frame a charge on the basis of the evidence already led by the prosecution. While doing so, the prosecution expressly reserved its right to examine the rest of the witnesses after the framing of the charge. The prosecution purported to make this prayer under Section 254, Criminal P. C. of India, Act 5 of 1898. It may be mentioned that the Indian Criminal Procedure Code was applied to the part n States by the Act of 1951. The Code of Criminal Procedure (Amendment) Act 1951 came into force in the Hyderabad State on 1. 4. 1951. Under the provisions of Section 25 of the above Code, the Hyderabad Criminal Procedure Code was repealed. In this judgment the Indian Criminal Procedure Code will hereinafter be referred to as "the Indian Code" and the Hyderabad Criminal Procedure Code as the "hyderabad Code". The accused protested against this procedure contending that the case was governed by the Hyderabad Code and that under the provisions of Section 213, Hyderabad Code it was obligatory for the Magistrate before the stage of the framing of the charge to record the statements of all the witnesses cited by the prosecution and that the said Section did not permit the examining by the prosecution of some of the witnesses and reserving its right to examine the other witnesses after the charge was framed. Arguments were advanced before the Magistrate on the question as to which Code would apply to this case. The accused also requested the Magistrate to refer the case to the High Court under Article 228 of the Constitution of India for the determination of this constitutional question. The District Magistrate after hearing the arguments came to the conclusion that the Indian Code alone would apply to this case, as the Code came to be applied to Hyderabad on 1st April 1951 when the case was still pending. The Magistrate declined to refer the ease to the High Court.

(2.) BEING aggrieved by the said order the Petitioner filed in this Court an application for the withdrawal of the ease from the file of the District Magistrate, Gulbarga, with a prayer that the questions of law involved in the case be determined by this Court.

(3.) THE learned Advocate for the Petitioner argued that when the case against the petitioner was launched, the Hyerdabad Code was extant and that under the provisions of Section 213 of the said Code, the Magistrate could not have framed a charge unless and until all the witnesses tendered on behalf of the prosecution were examined. He relied upon the words; "all evidence" occurring in the said Section. He further contended that the introduction of the Indian Code by the passing of Act 1 of 1951 by Parliament could not have the effect of repealing the Hyderabad Code and that the latter Code would continue to be in force, and that only in so far as any of its provisions were repugnant to the provisions of the Indian Code would the Hyderabad Code give way to the Indian Code. He urged that Section 25 of Act 1 of 1951 was ultra vires the legislative powers of Parliament. He elaborated his argument by contending that Criminal Procedure was one of the items in the concurrent list of schedule VII of the Constitution (item 2 of List in) and that being a subject in respect of which the State Legislature is also competent to legislate, Parliament could not have repealed an enactment passed by the State Legislature which it was competent to enact. Where any provision of the State Law is repugnant to any provision of a Central enactment that the State Law would yield to the Central Law under Article 254 (1) of the Constitution, there was no repugnancy between Section 213 of the Hyderabad Code and Section 254 of the Indian Code. Generally we would not proceed to decide a question of constitutional law if the decision of such question was not necessary for the disposal of the case. In this respect we usually prefer to follow the wholesome rule enunciated by Cooley that where there are other grounds on which we could rest our judgment, we should not express any opinion on the constitutional question which may incidentally arise vide Cooley vol. I pp. 338 and 339 para 2 which runs as follows: