T. M. DAVE Vs. EMPEROR

JUDGEMENT

(1.) THE four appellants have been prosecuted as a sequel to a railway accident which took place at mile 37l/10 between Akola and Borgaon on the early morning of 4th June 1943, which resulted in considerable loss the life. A goods train had left Akola and was unable to surmount a gradient. The course was adopted of taking part of the train on and leaving part, behind. In spite of the fact that the section of line was not "blocked" (i.e. was not free of traffic), the mail train behind was allowed to proceed from Akola and rushed into that part of the goods train which had been left on the track. The four appellants are: (1) the signaller Jalil employed at Akola station, (2) the Assistant Station Master Dave of Akola station, (3) the guard of the goods train and (4) the driver of the mail train. It is common ground between the Crown and the appellants that the appellants are and were servants of the Crown employed about the affairs of the Government of India and of the Federation (British India) within the meaning of Sections 270(1) and 270(3), Constitution Act. It is contended by the appellants that Section 270(1) applies to their cases and that they are immune from prosecution as their acts were done or purported to be done in the execution of their duty unless there is the sanction of the Governor-General for their prosecution. So two questions arise for decision before deciding the merits of their appeals: (1) whether Section 270(1), Government of India Act, applies to the appellants now and (2) whether the proceedings have been instituted in respect of acts done or purported to be done in execution of their duty. Section 270, Constitution Act, which occurs in Part 10, was in virtue of Section 320(3) brought into force by Order in Council on 1st April 1937 and that date became the date of the commencement of Part 3 of the Act. The part of the Act which deals with Federation of India will in virtue of Section 320, Sub-section (1). come into force on such date as His Majesty may appoint by proclamation establishing the Federation and the date so appointed is the date referred to in this Act as the date of the establishment of the Federation. Section 270 may be reproduced:

(2.) THE contention of the appellants is that as Section 270 had been brought into force by the above Order in Council and as these proceedings were instituted after the section came into force and as the acts in respect of which they are prosecuted were done or purported to be done in execution of duty before the relevant date, these proceedings must fail. The first contention of the Crown is that Section 270, Sub-section (1), has no application to those employed in connexion with the affairs of the Government of India unless and until the relevant date has in fact been fixed by His Majesty under Section 320 Sub-section (1). It is strenuously argued that any other construction is absurd and repugnant generally to the scheme of the Act and to Section 270 in particular.

(3.) IN my opinion the matter is and remains purely one of construction. The learned Advocate-General argued that there is a distinction between an enactment coming into force and taking effect and has cited instances in the Act where these words are used in contradistinction, and he says that the wording of the definition in Section 320, Sub-section (X), prevents Section 270(1) coming into effect in the case of class 1 servants, even though His Majesty has ordered that the section should come into force. It is said that when the relevant date is the date of the establishment of the Federation and this expression has been defined in Section 320, Sub-section (1) in a retrospective sense as a date (already) fixed, it is impossible to read the words "the relevant date" in Section 270(1) prospectively so as to give protection against proceedings now brought. The words "before the relevant date" are said only to be clothed with legal meaning after the relevant date has occurred, and it is said that the result is to deprive Section 270(1) of effect until the date has been fixed. It is said that the relation of time contemplated in Section 270 cannot exist in law unless and until the date is fixed.