STATE OF BIHAR Vs. A F A HAMID

JUDGEMENT

(1.) This is an application under Article 228 of the Constitution of India, for the withdrawal of criminal appeal (No. 44 of 1954) pending before the second Additional Sessions Judge of Patna. The application has been made on behalf of the State of Bihar.

(2.) The short facts relevant to the application are the following. The opposite-party is Mr. A. P. A. Hamid, retired Inspector General of Police, Patna. On a report of the Inspector of Mica Mines, Kodarma, the opposite party was prosecuted for breaches of Section 17 (1)(a) & 17(4), Bihar Mica Act, 1947. He was tried by Mr. J. P. Sinha, Munsif Magistrate of Bihar, who convicted the opposite party on 16th January 1954 and sentenced him to a fine of Rs. 100/- only under Section 17(1) (a) and passed no separate sentence under Section 17(4) of the said Act. The opposite party preferred an appeal to the learned Sessions Judge of Patna which is now pending before the second Additional sessions Judge. It is stated that in the said appeal the validity of the Bihar Mica Act, 1947, as amended from time to time, has been, questioned on two grounds. The first ground is the following. The Bihar Mica Act, 1947, as originally passed, received the assent of the Governor General on 30th January 1948, which assent was published in the Bihar Gazette Extraordinary on 4th March, 1948. Sub-section (2) of Section 1, Bihar Mica Act, 1947, stated, inter alia, that "it shall remain in force for a period of one year". On 3rd March, 1949, the day on which the Act was to expire, an amending Act was passed by which the words "shall remain in force for a period of one year" were deleted. This amending Act was assented to by the Governor, but not by the Governor General. The contention is that the amending Act was invalid for want of assent by the Governor General. The second contention is that the Bihar Mica Act, 1947, as amended from time to time, was ultra vires the Bihar Legislature. This contention has been put before me in the following way. Item 23 of the Provincial Legislative List in Schedule 7, Government of India Act, 1935 related to "Regulation of mines and oilfields and mineral development subject to the provisions of List I with respect to regulation and development under Dominion control". Items 34 and 36 of List I of the Seventh Schedule related to

(3.) The contentions referred to above have been explained to me by the learned Government Advocate though he has made it quite clear that the contentions are, in his opinion, incorrect. The stand which the learned Government Advocate has taken is that the appeal pending before the learned second Additional Sessions Judge involves a substantial question of law as to the interpretation of the Government of India Act, 1935, though the contentions raised on behalf of the opposite party with regard to the constitutional validity of the Bihar Mica Act, 1947, are, in the opinion of the learned Government Advocate, incorrect. It is somewhat of a paradox in this case that the contentions which are really raised fay the opposite party are being placed by the learned Government Advocate, while learned counsel for the opposite party is opposing the application under Article 228 of the Constitution, on the ground that the determination of the constitutional questions may not be necessary for the disposal of the appeal.