PUBLIC PROSECUTOR Vs. DR. B. KRISHNASAMI AND OTHERS

JUDGEMENT

(1.) These appeals are preferred by the State against the judgment of the Sub-Divisional Magistrate, Gudur, acquitting the respondents. Chargesheets were filed against the owners and managers of some mica mines situated in different villages in Gudur taluk of Nellore district for contraventions of the rules made under the Indian Mines Act punishable under sections 73 and 66 of the Indian Mines Act, 1952, or for the infringement of some of the regulations of the Indian Metalliferous Mines Regulations or for the violation of the Mines Creche Rules of 1946 framed by the Government in exercise of the power conferred by sub-section (bb) of section 30 of Indian Mines Act of 1923. It is not necessary to go into the details of these prosecutions as no decision is called for on the merits. The validity of the rules the contravention of which is said to have constituted the offences, was called in question before the Sub-Divisional Magistrate on the ground that the Act under which these rules were framed was superseded by Act XXXV of 1952 and therefore they were not laws in force. It was contended before him that the provisions of law, which the prosecution urged as having been contravened, were invalid and ultra vires and that the prosecution could not be sustained. As the Sub-Divisional Magistrate reached the conclusion that the above said rules and regulations were ultra vires and as there was no authoritative ruling on the subject he referred the cases to this Court under section 432, Criminal Procedure Code. The reference was answered by a Bench consisting of the Chief Justice and Justice Bhimasankaram. They expressed the opinion that the rules and regulations made under the earlier Act could not be described as laws in force within the meaning of Article 20 of the Constitution and that the accused could not be convicted under a law merely deemed to be in force. A copy of this order was sent to the Magistrate by whom the reference was made and the Magistrate gave judgments in all the cases acquitting the accused in conformity with that order. These appeals are filed against those acquittals.

(2.) In these appeals, the view of the Bench, which formed the basis of the orders of acquittal was canvassed by the Public Prosecutor. It was urged by him that the opinion of the Bench, that the rules in question were hit at by Article 20 of the Constitution as amounting to ex post facto laws was open to doubt, and the doctrine in Shiv-Bahadur Singh v. State of V.P. AIR 1953 Supreme Court 394 did govern the interpretation of the rules framed under the Mines Act of 1923. In the Supreme Court case, the charges as against the appellants in terms referred to the offences as having been committed under the various sections of the Indian Penal Code as adopted in the United State of Vindhya Pradesh by Ordinance XLVIII of 1949. Though this Ordinance was passed on 11th September, 1949, i.e., after the alleged offence was committed, it was made retrospective by providing that it should be deemed to be in force in Vindhya Pradesh from the 9th of August, 1948, long prior to the commission of the offences. In such a situation, their Lordships held that the law in force must be taken to relate to law "deemed to be in force" but law factually in operation at the time or actually in existence. By giving retroactive operation to that Ordinance the principle underlying Article 20 was infringed. This has obviously no application to these cases on hand as the question of ex post facto legislation does arise in this case and the offences were committed in this case long after the new Act came into force, continued the Public Prosecutor.

(3.) He also submitted that the scope and ambit of section 24 of the General Clauses Act was properly appreciated by the Bench and that, by reason of that section, the rules, the constitutionality of which is in question could be imported into the new Act, i.e., as framed and issued under the new Act. I do think I am called upon to discuss the merits of this contention, as a preliminary issue arises as to whether I could go behind the opinion expressed by the Bench in the reference under section 432, Criminal Procedure Code.